<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Aames Financial Corporation
--------------------------------------------------
(Name of Issuer)
Common Shares, par value $0.001
--------------------------------------------------
(Title of Class of Securities)
00253A 2
--------------------------------------------------
(CUSIP Number of Class of Securities)
Capital Z Management, Inc.
One Chase Manhattan Plaza, 44th Floor
New York, New York 10005
Attention: Mr. David A. Spuria
Tel. No. (212) 898-8700
Copy to :
Thomas M. Cerabino, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
--------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 23, 1998
--------------------------------------------------
(Date of Event which Requires
Filing of this Schedule)
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(b)(3) or (4), check the following: |_|
<PAGE>
SCHEDULE 13D
- ------------------------------- --------------------
CUSIP No. 00253A 2 Page 2 of 19 Pages
- ------------------------------- --------------------
- ---- ---------------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Capital Z Financial Services Fund II, L.P.
- ---- ---------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [X]
- ---- ---------------------------------------------------------------------------
3 SEC USE ONLY
- ---- ---------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ---- ---------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ---- ---------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda
- -------------- --------- -------------------------------------------------------
7 SOLE VOTING POWER
-0-
--------- -------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 3,320,519
OWNED BY --------- -------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH -0-
--------- -------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ---- ---------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
3,320,519
- ---- ---------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_]
- ---- ---------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.3%
- ---- ---------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ---- ---------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
1(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ------------------------------- --------------------
CUSIP No. 00253A 2 Page 3 of 19 Pages
- ------------------------------- --------------------
- ---- ---------------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Capital Z Partners, L.P.
- ---- ---------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [X]
- ---- ---------------------------------------------------------------------------
3 SEC USE ONLY
- ---- ---------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ---- ---------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ---- ---------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda
- ---- ---------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
--------- -------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 3,320,5191
OWNED BY --------- -------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH -0-
--------- -------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ---- ---------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
3,320,519
- ---- ---------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_]
- ---- ---------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.3%
- ---- ---------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ---- ---------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
1 Solely in its capacity as the sole general partner of Capital Z Financial
Services Fund II, L.P.
<PAGE>
SCHEDULE 13D
- ------------------------------- --------------------
CUSIP No. 00253A 2 Page 4 of 19 Pages
- ------------------------------- --------------------
- ---- ---------------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Capital Z Partners, Ltd.
- ---- ---------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [X]
- ---- ---------------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------------
- ----
4 SOURCE OF FUNDS*
Not Applicable
- ---- ---------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ---- ---------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda
- -------------- --------- -------------------------------------------------------
7 SOLE VOTING POWER
-0-
--------- -------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 3,320,5192
OWNED BY --------- -------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH -0-
--------- -------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ---- ---------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
3,320,519
- ---- ---------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
- ---- ---------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.3%
- ---- ---------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ---- ---------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
1 Solely in its capacity as the sole general partner of Capital Z Partners,
L.P., which is the sole general partner of Capital Z Financial Services
Fund II, L.P.
<PAGE>
SCHEDULE 13D
- ------------------------------- --------------------
CUSIP No. 00253A 2 Page 5 of 19 Pages
- ------------------------------- --------------------
- ---- ---------------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Capital Z Management, Inc.
- ---- ---------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
- ---- ---------------------------------------------------------------------------
3 SEC USE ONLY
- ---- ---------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ---- ---------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ---- ---------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda
- -------------- --------- -------------------------------------------------------
7 SOLE VOTING POWER
1,250,000
--------- -------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY -0-
OWNED BY --------- -------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH 1,250,000
--------- -------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- ---- ---------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
1,250,000
- ---- ---------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_]
- ---- ---------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.0%
- ---- ---------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ---- ---------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
<PAGE>
Item 1. Security and Issuer.
This statement on Schedule 13D relates to the Common Shares, par value
$0.001 per share (the "Common Stock"), of Aames Financial Corporation (the
"Company"), and is being filed pursuant to Rule 13d-1 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The address of the
principal executive offices of the Company is 2 California Plaza, 350 South
Grand Avenue, Los Angeles, California 90071.
Item 2. Identity and Background.
(a) This Statement is hereby filed by Capital Z Financial Services Fund
II, L.P., a Bermuda limited partnership ("Capital Z"), Capital Z Partners, L.P.,
a Bermuda limited partnership ("Cap Z L.P."), Capital Z Partners, Ltd., a
Bermuda corporation ("Cap Z Ltd."), and Capital Z Management, Inc., a Bermuda
corporation ("Cap Z Management"). Capital Z, Cap Z L.P., Cap Z Ltd. and Cap Z
Management are sometimes hereinafter collectively referred to as the "Reporting
Persons."
(b) - (c)
CAPITAL Z
Capital Z is a Bermuda limited partnership formed to invest in
securities of financial services entities. The principal business address of
Capital Z, which also serves as its principal office, is One Chase Manhattan
Plaza, 44th Floor, New York, New York 10005. Pursuant to Instruction C to
Schedule 13D of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), information
Page 6 of 19
<PAGE>
with respect to Cap Z L.P., the sole general partner of Capital Z, is set forth
below.
CAP Z L.P.
Cap Z L.P. is a Bermuda limited partnership, the principal business of
which is serving as the sole general partner of Capital Z Fund II. The principal
address of Cap Z L.P., which also serves as its principal office, is One Chase
Manhattan Plaza, 44th Floor, New York, New York 10005. Pursuant to Instruction C
to Schedule 13D of the Exchange Act, information with respect to Cap Z Ltd., the
sole general partner of Cap Z L.P., is set forth below.
CAP Z LTD.
Cap Z Ltd. is a Bermuda corporation, the principal business of which is
serving as the sole general partner of Cap Z L.P. The principal address of Cap Z
Ltd., which also serves as its principal office, is One Chase Manhattan Plaza,
44th Floor, New York, New York 10005. Pursuant to Instruction C to Schedule 13D
of the Exchange Act, the name, residence or business address, and present
principal occupation or employment of each director and executive officer of Cap
Z Ltd. is set forth below.
CAP Z MANAGEMENT
Cap Z Management is a Bermuda corporation, the principal business of
which is performing investment management services for Capital Z and its
portfolio companies. The principal address of Cap Z Management, which also
serves as its principal office, is One Chase Manhattan Plaza, 44th Floor, New
York, New York 10005. The name, residence or business address, and present
principal
Page 7 of 19
<PAGE>
occupation or employment of each director and executive officer of Cap Z
Management are as follows:
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OR
NAME BUSINESS ADDRESS EMPLOYMENT
- --------------------- --------------------------------- ------------------------
<S> <C> <C>
Steven M. Gluckstern One Chase Manhattan Plaza, 44th Chairman of the Board of
Floor, New York, New York 10005 Directors of Capital Z
Management, Inc. and
Capital Z Partners, Ltd.
Robert A. Spass One Chase Manhattan Plaza, 44th Deputy Chairman of the
Floor, New York, New York 10005 Board of Directors of
Capital Z Management,
Inc. and Capital Z
Partners, Ltd.
Laurence W. Cheng One Chase Manhattan Plaza, 44th President and a Director
Floor, New York, New York 10005 of Capital Z Management,
Inc. and Capital Z
Partners, Ltd.
Bradley E. Cooper One Chase Manhattan Plaza, 44th Senior Vice President
Floor, New York, New York 10005 and a Director of
Capital Z Management,
Inc. and Capital Z
Partners, Ltd.
Mark K. Gormley One Chase Manhattan Plaza, 44th Senior Vice President
Floor, New York, New York 10005 and a Director of
Capital Z Management,
Inc. and Capital Z
Partners, Ltd.
Adam M. Mizel One Chase Manhattan Plaza, 44th Senior Vice President
Floor, New York, New York 10005 and a Director of
Capital Z Management,
Inc. and Capital Z
Partners, Ltd.
Paul H. Warren One Chase Manhattan Plaza, 44th Senior Vice President
Floor, New York, New York 10005 and a Director of
Capital Z Management,
Inc. and Capital Z
Partners, Ltd.
Scott M. Delman One Chase Manhattan Plaza, 44th Senior Vice President
Floor, New York, New York 10005 and a Director of
Capital Z Management,
Inc. and Capital Z
Partners, Ltd.
David A. Spuria One Chase Manhattan Plaza, 44th General Counsel and
Floor, New York, New York 10005 Secretary of Capital Z
Management, Inc. and
Capital Z Partners, Ltd.
Page 8 of 19
<PAGE>
<S> <C> <C>
Roland V. Bernardon One Chase Manhattan Plaza, 44th Chief Financial Officer
Floor, New York, New York 10005 and Treasurer of Capital
Z Management, Inc. and
Capital Z Partners, Ltd.
</TABLE>
(d) None of the entities or persons identified in this Item 2 has,
during the last five years, been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) None of the entities or persons identified in this Item 2 has,
during the last five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
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.
(f) All of the natural persons identified in this Item 2 are citizens
of the United States of America, except for Laurence W. Cheng who is a citizen
of Canada.
Item 3. Source and Amount of Funds or Other Consideration.
As more fully described in Item 4 below, on December 23, 1998 Capital Z
entered into a Management Voting Agreement (the "Voting Agreement") with Cary H.
Thompson and Neil B. Kornswiet (collectively, the "Shareholders"), stockholders
and senior executive officers of the Company. The Voting Agreement was executed
as an inducement to Capital Z to enter into the Agreement (as defined below).
Page 9 of 19
<PAGE>
As more fully described in Item 4 below, pursuant to the Agreement (as
defined below), on January 4, 1999, Cap Z Management received a warrant to
purchase 1.25 million shares of Common Stock.
No separate funds or other consideration were paid or given for the
beneficial ownership which is the subject of this Subject 13D.
Item 4. Purpose of Transaction.
On December 23, 1998 the Company and Capital Z executed a Preferred
Stock Purchase Agreement (the "Agreement") pursuant to which Capital Z will make
an equity investment in the Company of up to $100 million, at a per share
purchase price equal to the equivalent of $1.00 per share of Common Stock. The
Agreement provides, among other things, for (i) the purchase by Capital Z of
Series B Convertible Preferred Stock of the Company and Series C Convertible
Preferred Stock of the Company in a private placement transaction (the "Initial
Closing"); and (ii) after the Initial Closing and completion of a
recapitalization described below, an offering (the "Rights Offering") to the
Company's stockholders of non-transferable rights to purchase up to $25 million
of Series C Stock Convertible Preferred Stock of the Company for which Capital Z
would act as a standby purchaser.
Following the completion of the initial investment and subject to the
receipt of stockholder approval of a recapitalization to increase the Company's
authorized common and preferred stock (together with a split to be effected with
respect to the preferred
Page 10 of 19
<PAGE>
stock to be purchased by Capital Z, the "Recapitalization"), the stockholders of
the Company will have the opportunity to purchase shares of Series C Stock
Convertible Preferred Stock of the Company for an aggregate purchase price of
$25 million. Capital Z will act as standby purchaser with respect to the Rights
Offering, will purchase all shares of Series C Stock Convertible Preferred Stock
of the Company that are not purchased by the Company's stockholders at the same
per share purchase price offered to the stockholders. On January 4, 1999, Cap Z
Management received, in consideration of the standby commitment made by Capital
Z with respect to the Rights Offering, a warrant (the "Warrant") to purchase
1.25 million shares of Common Stock at an exercise price of $1.00 per share. At
the Initial Closing, the Company will issue to Capital Z (or its designee) a
warrant to purchase up to 3 million shares of Common Stock at an exercise price
of $1.00 per share, which will become exercisable if the Recapitalization is not
consummated before June 30, 1999.
The Initial Closing is subject to conditions including, but not limited
to, the receipt of certain regulatory approvals and third party consents, the
truth and accuracy of all representations and warranties, full compliance with
the terms of the Agreement, and compliance with all of the provisions of the
ancillary documents to the Agreement.
At the Initial Closing, the Company's board of directors will be
reconstituted to have nine members, and nominees of Capital Z will constitute
five members of the board.
Page 11 of 19
<PAGE>
Following the completion of the transactions contemplated by the
Agreement, Capital Z would hold Preferred Stock representing 57.2% of the
combined voting power of the Company if all shares offered in the Rights
Offering are purchased by common stockholders and 76.3% of the combined voting
power of the Company if none of the shares offered in the Rights Offering are
purchased by the common stockholders, in each case without giving effect to a
new stock option plan covering approximately 14,000,000 shares of common stock
to be in effect after the Initial Closing, subject to consummation of the
Recapitalization.
On December 23, 1998, Capital Z and the Shareholders entered into the
Voting Agreement. Under the terms of the Voting Agreement each of the
Shareholders agreed to vote all shares of Common Stock owned by such shareholder
in favor of the Recapitalization and against any matter that would partially or
wholly prevent or impede any of the transactions contemplated by the Agreement.
In the event that the Recapitalization is not consummated prior to June 30,
1999, each of the Shareholders is obligated to vote all shares of Common Stock
owned by such Shareholder as directed by the Board of Directors on all matters
submitted to the shareholders of the Company other than the election of
directors. Furthermore, the Shareholders agreed not to transfer any Common
Shares which they owned prior to the consummation of the transactions
contemplated by the Agreement.
On December 23 1998, Capital Z and the Company entered into a
Registration Rights Agreement (the "Registration Rights Agreement") under which
Capital Z (and certain other investors which may
Page 12 of 19
<PAGE>
acquire the Company's securities) have demand and piggy-back registration rights
with respect to their securities.
The foregoing descriptions of the Agreement, the Voting Agreement, the
Warrant and the Registration Rights Agreement are qualified in their entirety by
reference to the Agreement, the Voting Agreement, the Warrant and the
Registration Rights Agreement, which are attached hereto as Exhibit 1, Exhibit
2, Exhibit 3 and Exhibit 4 respectively, and are incorporated herein by
reference.
Except as set forth above, none of the Reporting Entities has any plans
or proposals which relate to or would result in any of the actions set forth in
paragraphs (a) through (j) of Item 4 to Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) Capital Z
As a result of the execution of the Voting Agreement, Capital
Z may, pursuant to Rule 13d-3 of the Exchange Act, be deemed to be the
beneficial owner of 3,320,519 shares of Common Stock, which, based on
calculations made in accordance with Rule 13d-3(d) of the Exchange Act and there
being 32,265,763 shares of Common Stock outstanding (as represented by the
Company to the Reporting Persons plus the 1,250,000 shares relating to the
Warrant), represents approximately 10.3% of the outstanding shares of Common
Stock.*
- ----------
* The Reporting Persons disclaims any beneficial ownership of the shares of
Common Stock reported herein.
Page 13 of 19
<PAGE>
CAP Z L.P.
In its capacity as the sole general partner of Capital Z, Cap
Z L.P. may, pursuant to Rule 13d-3 of the Exchange Act, be deemed to be the
beneficial owner of 3,320,519 shares of Common Stock, which, based on
calculations made in accordance with Rule 13d-3(d) of the Exchange Act and there
being 32,265,763 shares of Common Stock outstanding (as represented by the
Company to the Reporting Persons plus the 1,250,000 shares relating to the
Warrant), represents approximately 10.3% of the outstanding shares of Common
Stock.*
CAP Z LTD.
In its capacity as the sole general partner of Cap Z L.P., the
sole general partner of Capital Z, Cap Z Ltd. may, pursuant to Rule 13d-3 of the
Exchange Act, be deemed to be the beneficial owner of 3,320,519 shares of Common
Stock, which, based on calculations made in accordance with Rule 13d-3(d) of the
Exchange Act and there being 32,265,763 shares of Common Stock outstanding (as
represented by the Company to the Reporting Persons plus the 1,250,000 shares
relating to the Warrant), represents approximately 10.3% of the outstanding
shares of Common Stock.*
CAP Z MANAGEMENT
Capital Z Management may, pursuant to Rule 13d-3 of the Exchange Act,
be deemed to be the beneficial owner of 1,250,000 shares of Common Stock, which
based on calculations made in
- ----------
* The Reporting Persons disclaims any beneficial ownership of the shares of
Common Stock reported herein.
Page 14 of 19
<PAGE>
accordance with Rule 13d-3(d) of the Exchange Act and there being 32,265,763
shares of Common Stock outstanding (as represented by the Company to the
Reporting Persons plus the 1,250,000 shares relating to the Warrant), represents
approximately 0.4% of the outstanding shares of Common Stock.
(b)
CAP Z FUND II
1. Sole power to vote or to direct the vote -0-
2. Shared power to vote or to direct the vote 3,320,519
3. Sole power to dispose or to direct the disposition -0-
4. Shared power to dispose of or to direct the disposition -0-
CAP Z L.P.
1. Sole power to vote or to direct the vote -0-
2. Shared power to vote or to direct the vote 3,320,519
3. Sole power to dispose or to direct the disposition -0-
4. Shared power to dispose of or to direct the disposition -0-
CAP Z LTD.
1. Sole power to vote or to direct the vote -0-
2. Shared power to vote or to direct the vote 3,320,519
Page 15 of 19
<PAGE>
3. Sole power to dispose or to direct the disposition -0-
4. Shared power to dispose of or to direct the disposition -0-
CAP Z MANAGEMENT
1. Sole power to vote or to direct the vote 1,250,000
2. Shared power to vote or to direct the vote -0-
3. Sole power to dispose or to direct the disposition 1,250,000
4. Shared power to dispose of or to direct the disposition -0-
Information with respect to the securities owned by Messrs. Thompson
and Kornswiet may be found in their respective Schedule 13D filings.
(c) Except as set forth herein or in the Exhibits filed herewith, none
of the persons named in response to paragraph (a) has effected any transactions
in shares of Common Stock during the past 60 days.
(d) Except as set forth in this Item 5, no person other than each
respective record owner referred to herein of securities is known to have the
right to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, such securities.
Page 16 of 19
<PAGE>
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
Except as described above in Item 4 (which is incorporated herein by
reference), there are no contracts, arrangements, understandings or
relationships between the Reporting Persons and any other person with respect to
any securities of the Company.
Item 7. Material to be Filed as Exhibits.
1. Preferred Stock Purchase Agreement, dated as of December 23, 1998, by and
between Aames Financial Corporation and Capital Z Financial Services Fund
II, L.P.
2. Registration Rights Agreements, dated as of December 23, 1998, among
Capital Z Financial Services Fund II, L.P., and Aames Financial
Corporation.
3. Management Voting Agreement, dated as of December 23, 1998, among Capital Z
Financial Services Fund II, L.P., and Cary Thompson and Neil Kornswiet.
4. Warrant, dated as of January 4, 1999.
5. Joint Filing Agreement, dated as of January 4, 1999.
Page 17 of 19
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: January 4, 1999
CAPITAL Z FINANCIAL SERVICES
FUND II, L.P., a Bermuda limited partnership
By: Capital Z Partners, L.P., a Bermuda
limited Partnership, its General Partner
By: Capital Z Partners, Ltd., a Bermuda
corporation, its General Partner
By:/s/ David A. Spuria
-------------------
Name:David A. Spuria
Title:General Counsel
CAPITAL Z PARTNERS, L.P.,
a Bermuda limited partnership
By: Capital Z Partners, Ltd., a Bermuda
corporation, its General Partner
By:/s/ David A. Spuria
-------------------
Name:David A. Spuria
Title:General Counsel
CAPITAL Z PARTNERS, LTD.,
a Bermuda corporation
By:/s/ David A. Spuria
-------------------
Name:David A. Spuria
Title:General Counsel
CAPITAL Z MANAGEMENT, INC.,
a Bermuda corporation
By:/s/ David A. Spuria
-------------------
Name:David A. Spuria
Title:General Counsel
Page 18 of 19
<PAGE>
EXHIBIT INDEX
Exhibit No. Title
- ----------- -----
99.1 Preferred Stock Purchase Agreement, dated as of December 23,
1998, by and between Aames Financial Corporation and Capital Z
Financial Services Fund II, L.P.
99.2 Registration Rights Agreements, dated as of December 23,
1998, among Capital Z Financial Services Fund II, L.P., and Aames
Financial Corporation.
99.3 Management Voting Agreement, dated as of December 23, 1998,
among Capital Z Financial Services Fund II, L.P., and Cary
Thompson and Neil Kornswiet.
99.4 Warrant, dated as of January 4, 1999.
99.5 Joint Filing Agreement, dated as of January 4, 1999.
Page 19 of 19
<PAGE>
Execution Copy
================================================================================
PREFERRED STOCK
PURCHASE AGREEMENT
by and between
AAMES FINANCIAL CORPORATION
and
CAPITAL Z FINANCIAL SERVICES FUND II, L.P.
================================================================================
Dated as of December 23, 1998
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.....................................................2
Section 1.1. Definitions...............................................2
Section 1.2. General Interpretive Principles..........................10
ARTICLE II. ACTIONS TO OCCUR ON THE DATE HEREOF; ISSUANCE
AND SALE OF SECURITIES.........................................10
Section 2.1. Actions to Occur on the Date of this Agreement...........10
Section 2.2. Issuance, Sale and Purchase of Senior Preferred Stock....11
Section 2.3. Initial Closing..........................................11
Section 2.4. Issuance, Sale and Purchase of Series C Preferred Stock
Pursuant to the Standby Commitment......................12
Section 2.5. Supplemental Closing.....................................13
Section 2.6. Further Action...........................................13
ARTICLE III. REPRESENTATIONS AND WARRANTIES.................................14
Section 3.1. Representations and Warranties of the Company............14
Section 3.1.1. Organization, Good Standing and Qualification............14
Section 3.1.2. Authorization; Enforceability............................14
Section 3.1.3. Consents; No Conflict....................................15
Section 3.1.4. Capitalization...........................................16
Section 3.1.5. Subsidiaries.............................................16
Section 3.1.6. Dividends; Stock Repurchases.............................17
Section 3.1.7. Valid Issuance of Securities.............................17
Section 3.1.8. Litigation...............................................17
Section 3.1.9. Compliance with Law and Other Instruments................18
Section 3.1.10. SEC Documents; Financial Statements......................19
Section 3.1.11. Undisclosed Liabilities..................................20
Section 3.1.12. Absence of Certain Changes or Events.....................20
Section 3.1.13. ERISA and Other Employment Matters.......................21
Section 3.1.14. Taxes....................................................23
Section 3.1.15. Company Intellectual Property............................24
Section 3.1.16. Contracts................................................26
Section 3.1.17. Insurance................................................27
Section 3.1.18. Registration Rights......................................27
Section 3.1.19. Brokers..................................................27
Section 3.1.20. Environmental Protection.................................28
Section 3.1.21. State Takeover Laws......................................28
Section 3.1.22. Proxy Statement..........................................28
Section 3.1.23. Fairness Opinion.........................................29
Section 3.1.24. Certain Assets...........................................29
Section 3.1.25. Fiduciary Activities.....................................30
Section 3.1.26. Warehouse Facilities.....................................30
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Section 3.2. Representations and Warranties of the Purchaser..........30
Section 3.2.1. Organization.............................................31
Section 3.2.2. Authorization............................................31
Section 3.2.3. Purchase for Investment..................................31
Section 3.2.4. Restricted Securities....................................31
Section 3.2.5. Purchaser Information....................................32
Section 3.2.6. Consents; No Conflict....................................32
Section 3.2.7. Brokers..................................................33
Section 3.2.8. Financing................................................33
ARTICLE IV. CERTAIN AGREEMENTS OF THE PARTIES..............................33
Section 4.1. Conduct of Business of the Company.......................33
Section 4.2. Approvals, Etc...........................................35
Section 4.3. Access; Non-Solicitation.................................36
Section 4.4. Existing Rights..........................................38
Section 4.5. Proxy Statement; Shareholders' Meeting...................38
Section 4.6. Publicity................................................39
Section 4.7. Warehouse Facilities.....................................39
Section 4.8. NYSE Waiver..............................................39
Section 4.9. Recapitalization; Rights Offering........................39
Section 4.10. Material Developments....................................40
Section 4.11. New Option Plan; Other Employee Arrangements.............40
Section 4.12. Board of Directors.......................................40
Section 4.13. Indemnification and Insurance............................41
ARTICLE V. CLOSING CONDITIONS.............................................43
Section 5.1. Conditions to Obligation of Purchaser....................43
Section 5.1.1. Representations and Warranties Complete and Correct......43
Section 5.1.2. Compliance with this Agreement...........................43
Section 5.1.3. Officers' Certificate....................................43
Section 5.1.4. Consents; Debt Waivers...................................44
Section 5.1.5. Supporting Documents.....................................44
Section 5.1.6. HSR Act..................................................44
Section 5.1.7. Other Agreements; Additional Investments.................45
Section 5.1.8. Material Adverse Change..................................45
Section 5.1.9. Illegality, Etc..........................................45
Section 5.1.10. NYSE Waiver; Stockholder Approval........................45
Section 5.1.11. Legal Opinions...........................................45
Section 5.1.12. Litigation...............................................45
Section 5.1.13. Board of Directors.......................................46
Section 5.1.14. Warehouse Facilities.....................................46
Section 5.2. Conditions to the Obligations of the Company.............46
Section 5.2.1. Compliance with this Agreement...........................46
Section 5.2.2. Purchaser's Representations and Warranties
Complete and Correct.....................................46
Section 5.2.3. Officer's Certificate....................................46
Section 5.2.4. Consents.................................................47
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Section 5.2.5. HSR Act..................................................47
Section 5.2.6. Illegality, Etc..........................................47
Section 5.2.7. NYSE Waiver; Stockholder Approval........................47
Section 5.2.8. Legal Opinions...........................................47
ARTICLE VI. TERMINATION....................................................47
Section 6.1. Termination..............................................47
Section 6.2. Effect of Termination; Termination Fee...................49
ARTICLE VII. MISCELLANEOUS..................................................50
Section 7.1. Expenses and Indemnification.............................50
Section 7.2. Survival of Representations and Warranties...............51
Section 7.3. Notices..................................................52
Section 7.4. Governing Law............................................52
Section 7.5. Entire Agreement.........................................53
Section 7.6. Counterparts.............................................53
Section 7.7. Amendments...............................................53
Section 7.8. Severability.............................................53
Section 7.9. Titles and Subtitles.....................................53
Section 7.10. Further Assurances.......................................53
Section 7.11. Successors and Assigns...................................53
Exhibit A Series B Certificate of Designations
Exhibit B Series C Certificate of Designations
Exhibit C Form of Warrant
Exhibit D Form of New Option Plan
Exhibit E Form of Contingent Warrant
Exhibit F Registration Rights Agreement
Exhibit G Terms of Management Services Agreement
Exhibit H Management Voting Agreement
Exhibit I-1 Management Investment Agreement (Cary Thompson)
Exhibit I-2 Management Investment Agreement (Neil Kornswiet)
Exhibit I-3 Management Investment Agreement (Other Investors)
Exhibit J Employment Agreements
Exhibit K Conditions to the Rights Offer
Exhibit L Opinions to be provided by the Company
Exhibit M Opinions to be provided by the Purchaser
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PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") dated as of December
23, 1998 between Aames Financial Corporation, a Delaware corporation (the
"Company"), and Capital Z Financial Services Fund II, L.P., a Bermuda limited
partnership ("Capital Z" and, solely for purposes of the provisions of this
Agreement relating to the rights of the Purchaser hereunder, together with such
Designated Purchasers as Capital Z may designate in accordance with Sections 2.2
and 2.4 hereof, collectively the "Purchaser").
RECITALS:
WHEREAS, each of the Company and the Purchaser has determined to enter into
this Agreement, pursuant to which the Purchaser has agreed to purchase from the
Company, and the Company has agreed to issue and sell to the Purchaser on the
Initial Closing Date (as hereinafter defined), (i) shares of the Company's
Series B Convertible Preferred Stock, par value $0.001 per share (the "Series B
Preferred Stock"), having the rights, preferences, privileges and restrictions
set forth in the form of the Certificate of Designations attached hereto as
Exhibit A (the "Series B Certificate of Designations"),; and (ii) shares of the
Company's Series C Convertible Preferred Stock, par value $0.001 per share (the
"Series C Preferred Stock," and together with the Series B Preferred Stock, the
"Senior Preferred Stock"), having the rights, preferences, privileges and
restrictions set forth in the form of the Certificate of Designations attached
hereto as Exhibit B (the "Series C Certificate of Designations," and together
with the Series B Certificate of Designations, the "Certificates of
Designations"), the aggregate number of which shares is to be determined in
accordance with Section 2.2 of this Agreement;
WHEREAS, as promptly as practicable after the date hereof, the Company will
(i) call a meeting of its stockholders, at which the Company will submit to its
stockholders a proposal to (among other things) amend the certificate of
incorporation of the Company to increase the authorized number of shares of the
Company's common stock, par value $0.001 per share ("Common Stock"), and the
Company's preferred stock, par value $0.001 per share (the "Preferred Stock") as
contemplated by the Certificates of Designations; and (ii) upon the
effectiveness of such amendment, (and assuming the Initial Closing Date (as
hereinafter defined) has occurred) cause the outstanding shares of Senior
Preferred Stock to be split on the basis of one thousand-for-one (the foregoing
increase in authorized shares and split of Senior Preferred Stock are referred
to collectively herein as the "Recapitalization");
WHEREAS, subject to the completion of the Recapitalization, the Company
will offer, pursuant to the Rights Offering (as hereinafter defined), to the
existing holders of Common Stock non-transferable rights to purchase an
aggregate of
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$25 million in stated value of Series C Preferred Stock, and the Purchaser
will purchase on the Supplemental Closing Date (as hereinafter defined) an
amount equal to the entire unsubscribed portion of the Rights Offering (the
"Standby Commitment");
WHEREAS, on January 4, 1999 the Company will issue to Capital Z (or its
designee), as a fee for the Standby Commitment, a warrant (the "Warrant") to
purchase 1,250,000 shares of Common Stock at an exercise price of $1.00 per
share, such Warrant to be in the form attached hereto as Exhibit C; and
WHEREAS, the Company and the Purchaser desire to make certain
representations, warranties, covenants and agreements in connection with the
transactions contemplated herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange Act.
The term "Affiliated" has a correlative meaning.
"Agreement" has the meaning set forth in the preamble hereto.
"Alternative Transaction" has the meaning given in Section 4.3.
"Ancillary Agreements" means, collectively, the Registration Rights
Agreement, Employment Agreements, Management Investment Agreements, Management
Voting Agreements, New Option Plan and Management Services Agreement.
"Balance Sheet" has the meaning set forth in Section 3.1.11 hereof.
"Beneficially Own" with respect to any securities means having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act as in effect on the date hereof. The terms "Beneficial Ownership"
and "Beneficial Owner" have correlative meanings.
"Board of Directors" means the board of directors of the Company.
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"Business Day" means any day, other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Bylaws" means the bylaws of the Company, as amended from time to time.
"Capital Z" has the meaning set forth in the preamble hereto.
"Certificates of Designations" has the meaning set forth in the recitals
hereto.
"Certificate of Incorporation" means the certificate of incorporation of
the Company, as such may be amended from time to time.
"Closing Dates" mean each of the Initial Closing Date and the Supplemental
Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended, and all
regulations promulgated thereunder, as in effect from time to time.
"Commission" means the U.S. Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the recitals hereto.
"Company" has the meaning set forth in the preamble hereto.
"Company Disclosure Letter" has the meaning set forth in Section 3.1.
"Contingent Warrant" has the meaning set forth in Section 2.3(b).
"Continuing Directors" shall mean the directors of the Company on the date
of this Agreement and any successors to such directors who are not nominees of
the Purchaser.
"Derivative Securities" means any subscriptions, options, conversion
rights, exchange rights, warrants, or other agreements (oral or in writing),
securities or commitments of any kind obligating the Company or any of its
Subsidiaries to issue, grant, deliver or sell, or cause to be issued, granted,
delivered or sold, any Equity Securities of the Company or any of its
Subsidiaries.
"Designated Purchaser" has the meaning set forth in Section 7.11(b).
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"DGCL" means the Delaware General Corporation Law.
"Environmental Laws" means any federal, state or local statute, code,
ordinance, rule, regulation, permit, consent, approval, license, judgment,
order, writ, decree, injunction or other authorization and any amendments
thereto, relating to:
(i) emissions, discharges, release or threatened releases of
pollutants, contaminants or hazardous or toxic materials or wastes into
indoor or ambient air, surface water, ground water, publicly owned
treatment works, septic systems or land;
(ii) the treatment, storage, disposal, handling, manufacturing,
transportation, or shipment of Hazardous Waste or hazardous and/or toxic
wastes, material, substances, products or by-products as defined in the
Comprehensive Environmental Response Compensation and Liability Act as
amended by the Superfund Amendments and Reauthorization Act, as amended, 42
U.S.C. ss. 9601 et seq.; the Resource Conservation Recovery Act, as
amended, 42 U.S.C. ss. 6901 et seq. and the Toxic Substances Control Act,
as amended, 15 U.S.C. ss. 2601 et seq. as amended from time to time and
corresponding state legislation and all regulations promulgated thereunder;
or
(iii) otherwise relating to the pollution or protection of
health or the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and all regulations promulgated thereunder, as in effect from time to
time.
"Equity Securities" of any Person means any and all common stock, preferred
stock and any other class of capital stock of, and any partnership or limited
liability company interests of such Person or any other similar interests of any
Person that is not a corporation, partnership or limited liability company.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Existing Common Share Equivalents" means, as of any date, any options,
warrants, convertible or exchangeable securities or other rights to acquire
Common Stock (other than those in favor of the Purchaser) outstanding as of such
date.
"Existing Rights" mean the preferred stock purchase rights issued by the
Company to its stockholders on July 12, 1996, each of which Existing Rights,
when exercisable, entitles the holder to purchase from the Company one
one-hundredth of a
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share of Series A Preferred Stock at a price of $100.00 (subject to
anti-dilution adjustment).
"Existing Rights Agreement" means the Rights Agreement, dated as of June
21, 1996, between the Company and Wells Fargo Bank, pursuant to which agreement
the Company issued the Existing Rights to the holders of Common Stock on July
12, 1996.
"GAAP" means U.S. generally accepted accounting principles as in effect at
the relevant time or for the relevant period.
"Governmental Authority" means any government or political subdivision or
department thereof, any governmental or regulatory body, commission, board,
bureau, agency or instrumentality, or any court or arbitrator or alternative
dispute resolution body, in each case whether federal, state, local or foreign.
"Group" has the meaning set forth in Rule 13d-5 under the Exchange Act.
"Hazardous Waste" means any chemical substance or material including, but
not limited to wastes, petroleum and petroleum-derived substances, asbestos,
urea formaldehyde foam insulation, transformer equipment containing dielectric
fluid with levels of polychlorinated biphenyls, radon gas, radioactive materials
or other pollutants or contaminants which have the characteristic of hazardous
waste as set forth in or which are now or hereafter included or regulated by the
Clean Water Act, 33 U.S.C. ss. 1251 et seq.; the Clean Air Act, as amended, 42
U.S.C. ss. 7401, et seq.; the Federal Water Pollution Control Act, as amended,
33 U.S.C. ss. 1251 et seq.; CERCLA; RCRA; and TSCA.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the regulations promulgated thereunder.
"Initial Closing" means the closing of the sale and purchase of the Senior
Preferred Stock pursuant to Section 2.2 hereof.
"Initial Closing Date" has the meaning set forth in Section 2.3 hereto.
"Intellectual Property" means all intellectual property rights including,
but not limited to, patents, patent rights, trade secrets, know-how, trademarks,
service marks, trade names, copyrights, licenses, proprietary processes and
formulae, customer marketing information, data list software, broker producer
lists and technology rights.
"Knowledge" with respect to the Company means the actual knowledge of the
Company's executive officers, and with
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respect to the Purchaser means the actual knowledge of its general partners.
"Licenses" means all licenses, permits, franchises, authorizations and
similar rights.
"Lien" means any mortgage, pledge, lien, security interest, claim, voting
agreement, conditional sale agreement, title retention agreement, restriction,
option or encumbrance of any kind, character or description whatsoever.
"Management Services Agreement" means a services agreement between the
Company and Equifin having the terms set forth in Exhibit G.
"Material Adverse Effect" means (i) a material adverse change in or effect
with respect to the business, operations, assets, properties, financial
condition, results of operations, regulatory condition or prospects of the
Company and its Subsidiaries taken as a whole; or (ii) any impairment in any
material respect of the Company's ability to perform any of its obligations or
agreements hereunder or under the Ancillary Agreements to which it is a party or
consummate the transactions contemplated hereby or thereby.
"NYSE" means the New York Stock Exchange.
"NYSE Waiver" means a written waiver from the NYSE of (i) the shareholder
approval requirements of Section 312.03 of the NYSE Listed Company Manual with
respect to the issuance and sale of the Senior Preferred Stock pursuant to this
Agreement and (ii) any other NYSE rule (including without limitation, any
listing standard that may be applicable with respect to the Common Stock) that
may apply to the issuance of the Senior Preferred Stock (or the terms thereof).
"New Option Plan" means the Company's 1999 Stock Option Plan, in the form
attached hereto as Exhibit D, which shall be in effect as of the Initial Closing
Date, subject to shareholder approval and consummation of the Recapitalization.
"Option Plans" means the Company's 1991 Stock Incentive Plan, 1995 Stock
Incentive Plan, 1996 Stock Incentive Plan, 1997 Stock Option Plan, 1997
Non-Qualified Stock Option Plan, as amended and restated effective May 22, 1998,
and options granted under those certain assumption option agreements entered
into by the Company in connection with its acquisition of One Stop Mortgage,
Inc. pursuant to an agreement dated August 12, 1996, and outstanding stock
options granted to Cary Thompson and David Sklar outside any of the foregoing.
"Person" means any individual, corporation, company, association,
partnership, joint venture, limited liability
10
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partnership, limited liability company, trust, estate or unincorporated
organization, or Governmental Authority.
"Proxy Statement" means the proxy statement to be filed by the Company with
the SEC in connection with the Shareholders Meeting.
"Purchase Price" has the meaning set forth in Section 2.2 hereof.
"Purchase Rights" has the meaning set forth in Section 4.9 hereof.
"Rating Agency" means, with respect to any Securitization Securities, any
nationally recognized statistical rating agency, including but not limited to
Moody's Investors Service, Inc., Standard & Poor's Rating Services, a division
of The McGraw-Hill Companies, Inc., Duff & Phelps Credit Ratings Co. and Fitch
IBCA, Inc. from whom the Company has requested that a rating be assigned.
"Recapitalization" has the meaning set forth in the recitals hereto.
"Registration Rights Agreement" means the Registration Rights Agreement to
be entered into between the Company and the Purchaser on the Initial Closing
Date, in the form attached hereto as Exhibit F.
"Representatives" means, with respect to any Person, any of such Person's
officers, directors, employees, agents, attorneys, accountants, actuaries,
consultants, equity financing partners or financial advisors or other Person
associated with, or acting on behalf of, such Person.
"Rights Offering" has the meaning set forth in Section 4.9 hereof.
"SEC Documents" has the meaning set forth in Section 3.1.10 hereof.
"Securities" means the Senior Preferred Stock, the Warrant and the
Contingent Warrant issued pursuant to this Agreement.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Securitization Documents" means each of the documents delivered in
connection with any Securitization Transaction, including but not limited to,
pooling and servicing agreements, indentures, trust agreements, mortgage loan
purchase agreements, asset sale agreements, servicing agreements,
indemnification agreements, insurance agreements, insurance policies,
11
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underwriting agreements, placement agency agreements, certificate purchase
agreement, note purchase agreements, subscription agreements, rating letters,
opinions of counsel and related closing documents or certifications.
"Securitization Securities" means each class of notes, certificates,
retained interests or residual interests issued or created in any Securitization
Transaction sponsored by the Company or a Subsidiary of the Company.
"Securitization Transaction" means any pooling of mortgage loans or other
assets, and the associated issuance of beneficial interests in such pools.
"Senior Preferred Stock" has the meaning set forth in the recitals hereto.
"Series A Preferred Stock" means the Company's Series A Preferred Stock,
par value $0.001 per share.
"Series B Certificate of Designations" has the meaning set forth in the
recitals hereto.
"Series B Preferred Stock" has the meaning set forth in the recitals
hereto.
"Series C Certificate of Designations" has the meaning set forth in the
recitals hereto.
"Series C Preferred Stock" has the meaning set forth in the recitals
hereto.
"Shareholder Approval" means the approval by the stockholders of the
Company, in accordance with the DGCL and the rules of the NYSE, of all matters
which are required to be approved by the Company's stockholders (and not the
subject of a NYSE Waiver) in connection with the issuance and sale of the Senior
Preferred Stock and the consummation of the Recapitalization.
"Shareholders' Meeting" means the Company's annual meeting of stockholders
to be held as promptly as practicable after the mailing of the definitive Proxy
Statement, at which meeting, among other things, the Company will seek the
Shareholders' Approval.
"Shares" means the shares of Common Stock (i) into which the Senior
Preferred Stock is convertible and (ii) issued, or issuable upon, exercise of
the Warrant and the Contingent Warrant (if issued).
"Standby Commitment" has the meaning set forth in the recitals hereto.
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"Standby Purchase Price" has the meaning set forth in Section 2.4 hereto.
"Subsidiary" means, as to any Person, any other Person of which more than
50% of the shares of the Voting Securities are owned or controlled, or the
ability to select or elect 50% or more of the directors or similar managers is
held, directly or indirectly, by such first Person or one or more of its
Subsidiaries or by such first Person and one or more of its Subsidiaries.
"Supplemental Closing" means the closing of the sale and purchase of Series
C Preferred Stock pursuant to the Standby Commitment.
"Supplemental Purchase Price" has the meaning set forth in Section 2.4
hereof.
"Tax" or "Taxes" means all taxes, including any interest, liabilities,
fines, penalties or additions to tax that may become payable in respect thereof,
imposed by any Governmental Authority, which taxes shall include, without
limiting the generality of the foregoing, income taxes (including, but not
limited to, United States federal income taxes and state income taxes), payroll
and employee withholding taxes, unemployment insurance, social security, sales
and use taxes, excise taxes, franchise taxes, gross or net receipts taxes,
occupation taxes, real and personal property taxes, ad valorem taxes, stamp
taxes, transfer taxes, capital taxes, import duties, withholding taxes, workers'
compensation taxes, and other obligations of the same or of a similar nature.
"Transaction Fee" means a cash fee of $1,000,000, payable to Capital Z (or
its designee) on the Initial Closing Date.
"Voting Power" means, with respect to any Voting Securities, the aggregate
number of votes attributable to such Voting Securities that could generally be
cast by the holders thereof for the election of directors (or similar managing
persons) at the time of determination (assuming such election were then being
held).
"Voting Securities" means, (i) with respect to the Company, the Equity
Securities of the Company entitled to vote generally for the election of
directors of the Company, and (ii) with respect to any other Person, any
securities of or interests in such Person entitled to vote generally for the
election of directors or any similar managing person of such Person.
"Warehouse Facility" shall mean any funding arrangement with a financial
institution or other lender or purchaser to the extent (and only to the extent)
any funding thereunder is available exclusively to finance or refinance the
purchase or
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origination of mortgage loans by the Company or any of its Subsidiaries,
including, but not limited to, purchase and sale facilities pursuant to which
the Company or a Subsidiary of the Company sells mortgage loans to a financial
institution.
"Warrant" has the meaning set forth in the recitals hereto.
"Wholly-Owned Subsidiary" means, as to any Person, a Subsidiary of such
Person of which 100% of the Equity Securities (other than directors' qualifying
shares or similar shares) is owned, directly or indirectly, by such Person.
Section 1.2. General Interpretive Principles. Whenever used in this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, any noun or pronoun shall be deemed to include the plural as
well as the singular and to cover all genders. The name assigned this Agreement
and the section captions used herein are for convenience of reference only and
shall not be construed to affect the meaning, construction or effect hereof.
Unless otherwise specified, the terms "hereof," "herein" and similar terms refer
to this Agreement as a whole (including the exhibits and schedules hereto), and
references herein to Articles or Sections refer to Articles or Sections of this
Agreement.
ARTICLE II.
ACTIONS TO OCCUR ON THE DATE HEREOF;
ISSUANCE AND SALE OF SECURITIES
Section 2.1. Actions to Occur on the Date of this Agreement.
Contemporaneously with the execution and delivery of this Agreement:
(i) the Company and the Purchaser are entering into a Registration
Rights Agreement in the form attached hereto as Exhibit F;
(ii) Capital Z and Messrs. Thompson and Kornswiet are entering into
the Management Voting Agreement in the form attached hereto as Exhibit H;
(iii) the Company and Messrs. Thompson and Kornswiet are entering into
the Management Investment Agreement in the forms attached hereto as
Exhibits I-1 and I-2, respectively; and
(iv) the Company and each of Messrs. Thompson and Kornswiet are
entering into Employment Agreements in the forms attached hereto as Exhibit
J.
Section 2.2. Issuance, Sale and Purchase of Senior Preferred Stock. Upon
the terms and subject to the conditions
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set forth in this Agreement, and in reliance upon the representations and
warranties hereinafter set forth, at the Initial Closing, the Company will
issue, sell, and deliver to the Purchaser (including any Designated Purchasers),
and the Purchaser will purchase from the Company:
(i) a number of shares of Series B Preferred Stock equal to (I) the
quotient obtained by dividing (A) the product of (x) the number of shares
of Common Stock outstanding on the Initial Closing Date and (y) 0.998,
multiplied by (B) 1,000, rounded to the nearest tenth of a share of Series
B Preferred Stock, with such number of shares of Series B Preferred Stock
to represent, as of the Initial Closing Date, 49.99% of the total voting
power of the Company entitled to vote for the election of directors of the
Company, minus (II) (A) the number of shares of Common Stock issuable upon
exercise of the Warrant and the Contingent Warrant divided by (B) 1,000;
and
(ii) a number of shares of Series C Preferred Stock equal to 75,000
minus the number of shares of Series B Preferred Stock purchased pursuant
to this Section 2.2.
The purchase price per share of Senior Preferred Stock shall equal
$75,000,000 divided by the total number of shares of Senior Preferred Stock
issued pursuant to the provisions of this Section 2.2 (the "Purchase Price").
Notwithstanding the foregoing, if the Shareholder Approval shall have been
obtained, and the Recapitalization consummated prior to the Initial Closing
Date, the number "1,000" in the foregoing clause (i) shall, in each case,
instead be "1" and the number "75,000" in the foregoing clause (ii) shall be
"75,000,000."
Section 2.3. Initial Closing. (a) Subject to the satisfaction or, if
permissible, waiver of the conditions set forth in Article V hereof, the Initial
Closing shall take place at the offices of Willkie Farr & Gallagher, 787 Seventh
Avenue, New York, New York at 10:00 a.m., New York City time, on the third
Business Day following the satisfaction of the closing conditions set forth in
Article V hereof, or at such other time and place as the parties may agree (the
date on which the Initial Closing occurs, the "Initial Closing Date").
(b) At the Initial Closing, (i) the Company will deliver to the Purchaser
certificates representing the Senior Preferred Stock to be purchased by, and
sold to, the Purchaser pursuant to Section 2.2 hereof (registered in the name or
names and in the denominations designated by Capital Z at least two Business
Days prior to the Initial Closing Date), together with the other documents,
certificates and opinions to be delivered pursuant to Section 5.1 hereof, (ii)
the Purchaser, in full payment for the Senior Preferred Stock to be purchased
by, and sold to, the Purchaser pursuant to Section 2.2 hereof, will deliver to
the Company an amount per share equal to the Purchase
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Price, in immediately available funds by wire transfer to the account
specified by the Company to Capital Z at least two Business Days prior to the
Initial Closing Date, or by such other means as may be agreed upon by the
parties hereto, together with the other documents, certificates and opinions to
be delivered pursuant to Section 5.2 hereof, (iii) the Company will pay to
Capital Z (or its designee) the Transaction Fee, in immediately available funds
by wire transfer to the account designated by Capital Z at least two Business
Days prior to the Initial Closing Date, (iv) the Company will issue to Capital Z
(or its designees) a warrant (the "Contingent Warrant") in the form attached
hereto as Exhibit E, and (v) the Company shall execute and deliver the
Management Services Agreement.
Section 2.4. Issuance, Sale and Purchase of Series C Preferred Stock
Pursuant to the Standby Commitment. Upon the terms and subject to the conditions
set forth in this Agreement, including, without limitation, the consummation of
the Recapitalization, and in reliance upon the representations and warranties
hereinafter set forth, at the Supplemental Closing, the Company will issue, sell
and deliver to the Purchaser (including such Affiliates of Capital Z as Capital
Z may designate in writing to the Company prior to the Supplemental Closing Date
and any Designated Purchasers), and the Purchaser will purchase from the Company
on the Supplemental Closing Date, any shares of Series C Preferred Stock which
were offered in, and which remain unsubscribed after consummation of, the Rights
Offering. The purchase price per share for the Series C Preferred Stock
purchased pursuant to the Standby Commitment shall be the amount obtained by
dividing (x) Purchase Price by (y) 1,000 (the "Standby Purchase Price").
Notwithstanding the foregoing, if the Shareholder Approval shall have been
obtained, and the Recapitalization consummated prior to the Initial Closing
Date, the number "1,000" in the foregoing clause (y) shall instead be "1". In
the event that the Initial Closing occurs, and the Supplemental Closing does not
occur as result of a material breach by the Purchaser of its obligation to
consummate the purchase of the Series C Preferred Stock to be purchased by the
Purchaser at the Supplemental Closing (and not any other breach or alleged
breach by the Purchaser hereunder), then Capital Z shall cause its designee
which received the Warrant to return the Warrant to the Company for
cancellation. The provisions of the immediately preceding sentence shall be of
no force or effect if this Agreement terminates for any reason prior to the
Initial Closing Date.
Section 2.5. Supplemental Closing. (a) Subject to the satisfaction or, if
permissible, waiver of the conditions set forth in Article V hereof (which are
applicable to the Supplemental Closing as set forth therein), the Supplemental
Closing shall take place at the offices of Willkie Farr & Gallagher, 787 Seventh
Avenue, New York, New York at 10:00 a.m., New York City time, on the 15th
Business Day following the consummation of the Rights Offering, or at such other
time and
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place as the parties may agree (the date on which the Supplemental Closing
occurs, the "Supplemental Closing Date").
(b) At the Supplemental Closing, (i) the Company will deliver to
Purchaser certificates representing the Series C Preferred Stock to be purchased
by, and sold to, the Purchaser pursuant to Section 2.4 hereof (registered in the
name or names designated by Capital Z at least two Business Days prior to the
Supplemental Closing Date), together with the other documents, certificates and
opinions to be delivered pursuant to Section 5.1 hereof; and (ii) the Purchaser,
in full payment for the Series C Preferred Stock to be purchased by, and sold
to, the Purchaser pursuant to Section 2.4 hereof, will deliver to the Company
the aggregate Standby Purchase Price, in immediately available funds by wire
transfer to the account specified by the Company to Capital Z at least two
Business Days prior to the Supplemental Closing Date, or by such other means as
may be agreed upon by the parties hereto, together with the other documents,
certificates and opinions to be delivered pursuant to Section 5.2 hereof. At the
Supplemental Closing, the Purchaser, at its option, may exchange up to 3,000,000
shares of Series C Preferred Stock (as such Series C Preferred Stock shall have
been adjusted pursuant to the one-thousand-for-one stock split effected pursuant
to the Recapitalization) acquired at the Initial Closing for an equivalent
number of shares of Series B Preferred Stock; provided, that, immediately
following such exchange, the total number of outstanding shares of Series B
Preferred Stock do not represent more than 49.99% of the total voting power of
the Company entitled to vote for the election of direction of the Company.
Section 2.6. Further Action. During the period from the date hereof to the
Supplemental Closing Date, each of the Company and the Purchaser shall use all
commercially reasonable efforts to take all action necessary or appropriate to
satisfy the applicable closing conditions contained herein.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser as follows, subject, in the cases
specified in this Article III, to the matters set forth in the disclosure letter
of the Company delivered to the Purchaser on the date hereof and incorporated by
reference herein (the "Company Disclosure Letter"). The matters referred to in
the Company Disclosure Letter shall be deemed to qualify (i) the specific
representations and warranties which are referred to therein, and (ii) such
other representations and warranties where the substance of the disclosure made
with respect to such matter includes sufficient information and detail to make
clear the nature of such qualification.
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Section 3.1.1. Organization, Good Standing and Qualification. Each of the
Company and its Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization, and has
all requisite corporate or other organizational power and authority under such
laws to own or lease and operate its properties and to carry on its business as
now conducted. Each of the Company and its Subsidiaries is duly qualified or
licensed to do business as a foreign corporation, in good standing in each
jurisdiction in which the nature of the business transacted by it or the
character of the properties owned or leased by it requires it to so qualify or
be licensed, except where the failure to be so licensed or qualified would not,
singly or in the aggregate, be reasonably likely to have a Material Adverse
Effect. The Company has made available to the Purchaser a complete and correct
copy of the Certificate of Incorporation and the Bylaws of the Company and each
of its Subsidiaries, each as amended to date and each of which as so made
available is in full force and effect. The Company has made available to the
Purchaser a complete and correct copy of the minute books of the Company and
each of its Subsidiaries, and each such minute book includes minutes of the
meetings of, and resolutions adopted by, the board of directors of each such
entity and the committees thereof to date.
Section 3.1.2. Authorization; Enforceability. (a) Except for the
Shareholder Approval, (i) the Company has all requisite corporate power and
authority to perform, execute and deliver its obligations under this Agreement,
each Ancillary Agreement to which it is a party, the Warrant, the Contingent
Warrant and the Certificates of Designations; and (ii) all corporate action on
the part of the Company, its officers, directors and stockholders necessary for
the authorization, execution and delivery of this Agreement, each Ancillary
Agreement to which the Company is a party, the Warrant, the Contingent Warrant
and the Certificates of Designation, and the performance of all obligations of
the Company hereunder and thereunder, and the authorization, issuance, sale and
delivery of the Securities, has been taken.
(b) This Agreement and each Ancillary Agreement to which the Company is a
party and which is to be entered into on the date hereof, have been duly
authorized, executed and delivered by the Company and constitute the valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (whether enforcement is sought by proceedings in equity or
at law).
(c) Each Ancillary Agreement to which the Company is a party and which is
to be entered into on the Initial Closing Date has been duly authorized and, on
the Initial Closing Date, will
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be executed and delivered by the Company and constitute the valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (whether enforcement is sought by proceedings in equity or
at law).
Section 3.1.3. Consents; No Conflict. (a) Except (i) as set forth on the
Company Disclosure Letter; (ii) required blue sky filings, if any, which will be
effected in accordance with applicable blue sky laws; (iii) filings required
under the Securities Act in connection with the Registration Rights Agreement;
(iv) the filing of a Pre-Merger Notification Form and related documents under
the HSR Act; (v) the approval of the NYSE for the issuance and listing of the
Shares on the NYSE, subject to official notice of issuance; (vi) the Shareholder
Approval, and (vii) as would not be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect, no consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Governmental Authority or any other Person on the part of the
Company is required in connection with the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements.
(b) The execution and delivery by the Company of this Agreement, each of
the Ancillary Agreements to which it is a party, and the Warrant and the
Contingent Warrant, and the performance by the Company of its obligations
hereunder, thereunder and in the Certificates of Designations, will not (i)
violate any provision of the Certificate of Incorporation or Bylaws; (ii)
violate any provision of any law or any order of any court or Governmental
Authority; (iii) conflict with, result in a breach of or constitute (with notice
or lapse of time or both) a default under, or allow any other party thereto a
right to terminate or seek a payment from the Company or any Subsidiary under
the terms of, any indenture, agreement or other instrument by which the Company
or any of its subsidiaries or any of their properties or assets is bound; or
(iv) result in the creation or imposition of any Lien upon any of the properties
or assets of the Company or any of its Subsidiaries, other than, in the case of
clauses (ii), (iii) and (iv), as would not be reasonably likely to have a
Material Adverse Effect.
Section 3.1.4. Capitalization. (a) The authorized capital stock of the
Company consists of (i) 1,000,000 shares of Preferred Stock, 500,000 of which
have been designated as Series A Preferred Stock; and (ii) 50,000,000 shares of
Common Stock.
(b) As of December 17, 1998, no shares of Series A Preferred Stock were
issued and outstanding and there were issued and outstanding (i) 31,015,763
shares of Common Stock and (ii)
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options to purchase 5,247,243 shares of Common Stock under the Option Plans.
(c) Except as set forth in the Company Disclosure Letter or as provided in
this Agreement, there are no Derivative Securities outstanding (including
preemptive rights). The Company has, and will at the Initial Closing have (after
giving effect to the issuance of securities being issued on the Initial Closing
Date) sufficient authorized Common Stock reserved for issuance for all
outstanding Derivative Securities (other than, prior to the Recapitalization,
the Senior Preferred Stock). The Company agrees that there shall be no
adjustment made pursuant to (i) Section 9 of the 1996 Stock Option Plan, (ii)
Section 8 of the 1997 Stock Option Plan, and (iii) Section 8 of the 1997
Non-Qualified Stock Option Plan to any options granted or other grants made
under the applicable plan as a result of the issuance and sale of the
Securities, and no other anti-dilution adjustment shall be required under any
other Option Plan as a result of the issuance and sale of the Securities.
(d) The Company has no obligation (contingent or other) to purchase, redeem
or otherwise acquire any of its Equity Securities or any interest therein or to
pay any dividend or make any other distribution in respect thereof.
Section 3.1.5. Subsidiaries. (a) The Company Disclosure Schedule lists, for
each Subsidiary of the Company, existing as of the date hereof, the name of such
Subsidiary, together with (i) the jurisdiction and nature (e.g., corporation,
partnership, limited liability company) of its organization; (ii) the number and
percentage of shares of each class of Equity Securities of such Subsidiary owned
by the Company or any of its Subsidiaries; and (iii) the identity of any Person
other than the Company or its Subsidiaries that has the right (including upon
the passage of time or upon the occurrence of specified events) to acquire any
of its Equity Securities. The Equity Securities of each such Subsidiary owned,
directly or indirectly, by the Company are held free and clear of all Liens, and
all such Equity Securities have been duly authorized and validly issued and are
fully paid and non-assessable.
(b) Except for Equity Securities of the Subsidiaries of the Company, as set
forth in the Company Disclosure Letter hereto, or investment securities of any
Person held by Subsidiaries of the Company in the ordinary course of business
(provided the Company and its Subsidiaries Beneficially Own (and, after giving
effect to such transactions, would Beneficially Own), in the aggregate, less
than 5% of the Voting Power of the Voting Securities of such Person), the
Company does not, directly or indirectly, (i) Beneficially Own or own of record
any Equity Securities of, or any other equity interest in, any other Person; or
(ii) have any other equity investment or other ownership interest in any other
Person.
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Section 3.1.6. Dividends; Stock Repurchases. Except as disclosed in the
Company Disclosure Letter, there are no contractual or other restrictions or
limitations on the ability of the Company or any of its Subsidiaries to pay any
dividends or make any other distributions on, or to purchase, redeem or
otherwise acquire, any of its Common Stock.
Section 3.1.7. Valid Issuance of Securities. (a) The Securities and the
Shares, when issued, sold and delivered in accordance with the terms hereof for
the consideration expressed herein, will be duly authorized, validly issued,
fully paid and nonassessable.
(b) The outstanding shares of Common Stock are duly authorized, validly
issued, fully paid and nonassessable.
(c) The issuance, sale and delivery of the Securities and Shares is not
subject to any preemptive right of stockholders of the Company arising under law
or the Certificate of Incorporation or Bylaws or to any contractual right of
first refusal or other contractual right in favor of any Person.
Section 3.1.8. Litigation. Except as expressly disclosed in the SEC
Documents or in the Company Disclosure Letter, as of the date hereof (i) there
is no action, suit, proceeding or investigation pending or, to the Knowledge of
the Company, currently threatened against the Company or any of its Subsidiaries
that involves a claim against the Company or any of its Subsidiaries in an
amount in excess of $500,000, or that questions the validity of this Agreement
or any of the Ancillary Agreements or the right of the Company to enter into, or
to consummate, the transactions contemplated hereby or thereby, or that would be
reasonably likely, either individually or in the aggregate, to have a Material
Adverse Effect, nor does the Company have Knowledge that there is any basis for
any of the foregoing; and (ii) the Company is not a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any
Governmental Authority that specifically names the Company or any of its
Subsidiaries and as to which either compliance or noncompliance is reasonably
likely to have a Material Adverse Effect; and (iii) there are no regulatory
proceedings applicable to, or pending (or to the Knowledge of the Company
threatened) against the Company or any of its Subsidiaries, which are reasonably
likely to have a Material Adverse Effect. As of the date hereof, there is no
action, suit, proceeding or investigation by the Company or any of its
Subsidiaries currently pending or which the Company its Subsidiaries intends to
initiate that is material to the operations of the Company and Subsidiaries
considered as a whole.
Section 3.1.9. Compliance with Law and Other Instruments. (a) Except as
disclosed in the SEC Documents or in the Company Disclosure Letter, the Company
and its Subsidiaries are not in conflict with, or in default or violation of,
(i) any
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law, rule, regulation, order, judgment or decree applicable to any of them
or by which any of their property or assets is bound or affected; or (ii) any
note, bond, mortgage, indenture, contract, agreement, lease, License, permit,
franchise or other instrument or obligation to which any of them is a party or
by which any of their property or assets is bound or affected, except for any
such conflicts, defaults or violations that are not reasonably likely,
individually or in the aggregate, to have a Material Adverse Effect.
(b) Any and all requirements of any federal, state, or local law including,
without limitation, usury, truth in lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity or disclosure laws
applicable to the origination and servicing of mortgage loans represented as
assets on the most recent financial statements of the Company and its
Subsidiaries have been complied with, except for any failure to so comply that
would not be reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect.
(c) The Company and each Subsidiary of the Company holds all material
Licenses from all Governmental Authorities necessary for the conduct of its
business pursuant to any Securitization Documents to which it is a party and has
received no notice of proceedings relating to the revocation of any such
License, which alone or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would be reasonably likely to have a Material
Adverse Effect or materially and adversely affect (i) the ability of the Company
or any Subsidiary of the Company to perform its obligations under any
Securitization Documents, or (ii) the validity or enforceability of any mortgage
loans included in any Securitization Transaction to which the Company or any
Subsidiary of the Company is a party or any mortgage loan serviced by the
Company or any Subsidiary of the Company.
Section 3.1.10. SEC Documents; Financial Statements. (a) There are no
agreements, understandings or proposed transactions between the Company or any
of its Subsidiaries and any of their respective officers, directors or
Affiliates, or any Affiliate thereof, of a type that would be required to be
disclosed on Form 10-K for the year ending on June 30, 1998 other than the
agreements, understandings or proposed transactions disclosed in the SEC
Documents (as defined below).
(b) The Company has timely filed all reports required to be filed by it
with the SEC since July 1, 1995 pursuant to the Exchange Act. The Company has
provided the Purchaser with copies of (i) the Company's annual reports on Form
10-K for the years ended June 30, 1996, 1997 and 1998; (ii) the Proxy Statement
filed by the Company with the SEC on October 28, 1998 with respect to the 1998
Annual Meeting of Stockholders of the Company originally scheduled to be held on
December 18, 1998; and (iii) the Company's quarterly report on Form 10-Q for the
quarter ended
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September 30, 1998 (collectively, together with any other reports or
filings made by the Company since July 1, 1995 and prior to the date hereof with
the SEC pursuant to the requirements of the Securities Act or the Exchange Act,
the "SEC Documents"). As of their respective dates, or, in the case of
registration statements as of their respective effective dates, the SEC
Documents complied (or, as to filings by the Company with the SEC after the date
hereof, will comply) in all material respects with the requirements of the
Exchange Act or the Securities Act, as applicable. None of the SEC Documents, as
of their respective dates, contained (or, as to filings by the Company with the
SEC after the date hereof, will contain) any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Without limiting the representations and
warranties made in Section 3.1.11, the representation in the immediately
preceding sentence shall not apply to any misstatement or omission in any SEC
Document filed prior to the date of this Agreement which was superseded or
corrected by a subsequent SEC Document filed by the Company before the date
hereof.
(c) Except as otherwise noted therein or in the Company Disclosure Letter,
the financial statements of the Company included in the SEC Documents comply
(or, as to filings by the Company with the SEC after the date hereof, will
comply) as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with generally accepted accounting
principles, except in the case of unaudited statements, applied on a consistent
basis (except as may be indicated therein or in the notes thereto) during the
periods involved and fairly present the consolidated financial position of the
Company and its Subsidiaries as of the respective date thereof and the
consolidated results of their operations and cash flows for the respective
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
(d) None of the information set forth on Schedule 3.1.10(d) hereof contains
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
Section 3.1.11. Undisclosed Liabilities. Except as disclosed in the SEC
Documents, at June 30, 1998, there were no liabilities or obligations of any
nature (whether accrued, absolute, fixed, contingent, liquidated, unliquidated
or otherwise and whether due or to become due) required by GAAP to be set forth
on the Balance Sheet (as defined below) of the Company and its Subsidiaries
taken as a whole except as reflected or reserved against on the balance sheet at
June 30, 1998
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(including the notes thereto, the "Balance Sheet"). Since June 30, 1998,
except as set forth in the SEC Documents, the Company has not incurred any such
liabilities or obligations except (i) liabilities incurred in the ordinary
course of business consistent with past practice, (ii) such as would not be
reasonably likely to, individually or in the aggregate, have a Material Adverse
Effect, or (iii) as contemplated by this Agreement or the letter agreement
referred to in Section 6.2(e).
Section 3.1.12. Absence of Certain Changes or Events. Except as disclosed
in the SEC Documents or in the Company Disclosure Letter, or as a consequence
of, or as contemplated by, this Agreement, since September 30, 1998, (i) the
business of the Company has been carried on only in the ordinary and usual
course; (ii) there has not occurred any change or event which has resulted or is
reasonably likely to result in a Material Adverse Effect; provided, however,
that in determining whether a Material Adverse Effect has occurred, there shall
be excluded any change or effect resulting from matters disclosed by the Company
in any SEC Document filed prior to the date hereof or in the Company Disclosure
Letter; provided, further, that any material worsening of the capital markets
generally or the Company's liquidity needs or access to capital from that in
existence as of the date hereof shall be deemed to result in a Material Adverse
Effect, and (iii) neither the Company nor any Company Subsidiary has taken any
action of the type described in Section 4.1.
Section 3.1.13. ERISA and Other Employment Matters. (a) Except as set forth
in the Company Disclosure Letter, neither the Company nor any of its
Subsidiaries nor any trade or business (whether or not incorporated) under
common control with the Company or any of its Subsidiaries within the meaning of
Section 414(b), (c), (m) or (o) of the Code (the "Controlled Group") maintains
or contributes to or has any obligation to contribute to, or has any liability
(contingent or otherwise) with respect to, any plan, program, arrangement,
agreement or commitment which is an employment, consulting or deferred
compensation agreement, or an executive compensation, incentive bonus or other
bonus, employee pension, profit-sharing, savings, retirement, stock option,
stock purchase, severance pay, life, health, disability or accident insurance
plan, or vacation, or other employee benefit plan, program, arrangement,
agreement or commitment, including, without limitation, any "employee benefit
plan" as defined in Section 3(3) of ERISA (individually, a "Plan", and
collectively, the "Plans").
With respect to the Plans, the Company has delivered to the Purchasers or
their Representatives current copies of: (i) the Plan documents, and, where
applicable, related trust agreements, and any related agreements which are in
writing; (ii) summary Plan descriptions; (iii) the most recent Internal Revenue
Service determination letter relating to each Plan for which a letter of
determination was obtained; (iv) to the extent required to be filed, the most
recent Annual Report (Form 5500 Series and
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accompanying schedules of each Plan and applicable financial statements) as
filed with the Internal Revenue Service; and (v) audited financial statements,
if any.
(b) In all material respects, each Plan conforms to, and its administration
is in substantial compliance with, all applicable requirements of law,
including, without limitation, ERISA and the Code, and all of the Plans are in
full force and effect as written, and all premiums, contributions and other
payments required to be made by the Company, any Company Subsidiary or any
member of the Controlled Group under the terms of any Plan have been made or
accrued.
(c) Each Plan that is intended to be qualified under Section 401(a) of the
Code and each trust maintained pursuant thereto has received a favorable
determination letter from the Internal Revenue Service with respect to each such
Plan's qualification and its trust's exemption from tax, and, to the Knowledge
of the Company, nothing has occurred since the date of such letter which could
adversely impact such qualification and tax exemption. No Plan that is an
employee welfare benefit plan as defined in Section 3(1) of ERISA is funded
through a voluntary employees' beneficiary association as defined in Section
501(c)(9) of the Code.
(d) Neither the Company nor any Company Subsidiary nor any member of the
Controlled Group has ever maintained, contributed to or incurred any liability
with respect to any plan subject to Title IV of ERISA or Section 412 of the
Code.
(e) There are no multiemployer plans (as defined in Subsection 3(37) of
ERISA) to which the Company, any Company Subsidiary or any member of the
Controlled Group is, or has ever been required to make a contribution or other
payment.
(f) There has been no non-exempt prohibited transaction (within the meaning
of Section 4975 of the Code or Section 406 of ERISA) with respect to any Plan or
penalty incurred with respect to any Plan under Section 502(i) of ERISA.
(g) Except as set forth in the Company Disclosure Letter, neither the
Company nor any Company Subsidiary maintains any Plan providing post-retirement
benefits other than Plans qualified under Section 401(a) of the Code
("Post-Retirement Benefits"). Neither the Company nor any Company Subsidiary is
liable for Post-Retirement Benefits under any plan not maintained by the Company
or any Company Subsidiary. The Company and its Subsidiaries have complied in all
material respects with the requirements of Section 4980B of the Code and
Sections 601 et seq. of ERISA relating to continuation coverage for group health
plans.
(h) There has been no material violation of ERISA or the Code with respect
to the filing of applicable reports,
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documents and notices regarding the Plans with the Secretary of Labor or
the Secretary of the Treasury or the furnishing of required reports, documents
or notices to the participants or beneficiaries of the Plans.
(i) There are no pending actions, claims or lawsuits which have been
asserted, instituted or, to the Knowledge of the Company, threatened, against
the Plans, the assets of any of the trusts under such Plans or the Plan sponsor
or the Plan administrator, or, to the Knowledge of the Company, against any
fiduciary of the Plans with respect to the operation of such Plans (other than
routine benefit claims).
(j) There has been no mass layoff or plant closing as defined by the Worker
Adjustment and Retraining Notification Act or any similar state or local "plant
closing" law with respect to the employees of the Company or any Company
Subsidiary which resulted in any liability of the Company or any Company
Subsidiary which remains unsatisfied.
(k) The execution of, and performance of the transactions contemplated in,
this Agreement will not, either alone or upon the occurrence of subsequent
events, result in (i) any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase in
benefits or obligation to fund benefits with respect to any employee or (ii) the
Company's or any Company Subsidiary's failing to be able to deduct for Federal
income tax purposes any items on account of Section 280G or 162(m) of the Code.
Section 3.1.14. Taxes. Except as disclosed in the Company Disclosure Letter
or in the SEC Documents:
(a) The Company is the common parent of an affiliated group of corporations
(within the meaning of Section 1504(a) of the Code) eligible to file
consolidated federal income Tax Returns, of which the Company is a member. From
July 1, 1994 through the Initial Closing Date, the Company has included each
Subsidiary in its consolidated federal income Tax Return as a member of the
affiliated group of which the Company is the common parent.
(b) The Company and its Subsidiaries have duly filed all U.S. federal,
state, local, foreign and other tax returns (including any information returns),
reports and statements that are required to have been filed with the appropriate
taxing authority and have paid all Taxes with respect to the taxable periods
covered by such returns, reports or statements. All information provided with
respect to the taxable periods covered by such returns, reports and statements
is complete and accurate in all material respects.
(c) Any liability of the Company for Taxes not yet due and payable, or
which are being contested in good faith, has been
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provided for on the financial statements of the Company in accordance with
generally accepted accounting principles.
(d) No audits or investigations relating to any Taxes for which the Company
or its Subsidiaries may be liable are pending or threatened in writing by any
taxing authority. There are no agreements or applications by the Company or any
of its Subsidiaries for the extension of the time for filing any tax return or
paying any Tax, and neither the Company nor any Subsidiary has extended or
waived any statute of limitation for the assessment of any Taxes. The Company
Disclosure Letter lists the audit status of each of the Company's tax returns.
(e) Neither the Company nor any of its Subsidiaries are parties to any
agreements relating to the sharing or allocation of, or indemnification
agreement with respect to, Taxes, or similar contract or arrangement.
(f) Since January 1, 1994, no claim has been made by any Tax authority in a
jurisdiction where the Company or any Subsidiary does not currently file a Tax
return that it is or may be subject to Tax by such jurisdiction, nor to the
Company's Knowledge is any such assertion threatened.
(g) As of January 1, 1998 for U.S. federal income tax purposes, the Company
had no net operating loss carryforwards. There has not been an ownership change
of the Company within the meaning of Section 382 of the Code during the five
years preceding the date of this Agreement.
(h) The Company or its Subsidiaries have withheld from its employees,
independent contractors and third parties and timely paid to the appropriate
taxing authority proper and accurate amounts in all material respects through
all periods in compliance in all material respects with all Tax withholding
provisions of all applicable Laws.
(i) Neither the Company nor any Subsidiary has income that is includable in
computing the taxable income of a United States person (pursuant to Section 7701
of the Code) under Section 951 of the Code.
(j) All material elections with respect to Taxes of the Company or any
Subsidiary are set forth in the Company Disclosure Letter.
Section 3.1.15. Company Intellectual Property. (a) The Company and its
Subsidiaries own or have the valid and enforceable right to use all material
Intellectual Property necessary for the conduct of their business and operations
as currently conducted.
(b) The Company Disclosure Letter sets forth a complete list of all
material Intellectual Property owned by the
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Company and its Subsidiaries. Except as indicated in the Company Disclosure
Letter, the Company and its Subsidiaries own all right, title and interest in
the material Intellectual Property free and clear of all Liens and other adverse
claims and has the right to use without payment to a third party. The
Intellectual Property owned or licensed by the Company and/or its Subsidiaries
is adequate and sufficient for the conduct of the business of the Company and
its Subsidiaries in the ordinary course and as currently proposed to be
conducted.
(c) Except as set forth in the Company Disclosure Letter and except as
relates to trademarks and service marks not registered or subject to application
for registration, the material Intellectual Property is valid, subsisting,
unexpired, in proper form and enforceable and all renewal fees and other
maintenance fees with respect to material Intellectual Property, as applicable,
which have fallen due on or before the effective date of this Agreement have
been paid. The grants, registrations and applications for the material
Intellectual Property have not lapsed, expired or been abandoned and no
application or registration thereof is the subject of any legal or governmental
proceeding before any governmental, registration or other authority in any
jurisdiction other than grants, registrations or applications, the lapse,
expiration or abandonment of which would not reasonably be expected to have a
Material Adverse Effect.
(d) Except as set forth in the Company Disclosure Letter and except for
infringements, claims, demands, proceedings and defects in rights that would not
reasonably be expected to have a Material Adverse Effect, to the Company's
Knowledge, (i) there are no conflicts with or infringements of any Company
Intellectual Property by any third party; and (ii) the conduct of the business
of the Company and its Subsidiaries as currently conducted does not conflict
with or infringe any proprietary right of any third party. Except as set forth
in the SEC Documents, there is no claim, suit, action or proceeding pending or,
to the Knowledge of the Company or its Subsidiaries, threatened against the
Company or its Subsidiaries, (i) alleging any such conflict or infringement with
any third party's proprietary rights; or (ii) challenging the ownership, use,
validity or enforceability of the Company Intellectual Property that would be
reasonably likely, individually or in the aggregate, to have a Material Adverse
Effect.
(e) The Company Disclosure Letter sets forth a complete and correct list,
as of the date hereof, of all material Licenses. The Company has furnished
Purchaser with complete and correct copies of the Licenses listed in the Company
Disclosure Letter, as in effect on the date hereof. Neither the Company nor its
Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in
default under any License listed in the Company Disclosure Letter as of the date
hereof, and each License listed in the Company Disclosure Letter is in full
force and effect as to the Company or any of its Subsidiaries party thereto and,
to
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the Company's Knowledge, as to each other party thereto, except for such
defaults and failures to be in full force and effect as would not reasonably be
expected to have a Material Adverse Effect. Except as set forth in the Company
Disclosure Letter, neither the Company nor its Subsidiaries is under any
obligation to pay royalties or similar payments in connection with any License
listed in the Company Disclosure Letter in excess of $25,000 per year in the
aggregate.
(f) Except as set forth in the Company Disclosure Letter, neither the
Company nor its Subsidiaries is, nor will any of them be as a result of the
execution and delivery of this Agreement or the performance of its obligations
under this Agreement in breach of any License listed in the Company Disclosure
Letter. The validity and enforceability of the material Company Intellectual
Property and the registration thereof has not been materially affected adversely
as a result of the consummation of the transactions contemplated by this
Agreement.
(g) Neither the Company nor its Subsidiaries has entered into any material
consent, indemnification, forbearance to sue or settlement agreement with any
person relating to the material Company Intellectual Property or the
Intellectual Property of any third party other than as set forth in the Company
Disclosure Letter.
(h) The Company and its Subsidiaries have developed and commenced a
comprehensive plan to modify or replace any items, products or systems used in
the operation of the business of the Company or its Subsidiaries, which
incorporate the processing of dates and date-related data (including, but not
limited to, calculating, comparing and sequencing) that are operationally
material to the business of Company or its Subsidiaries including, but not
limited to, computer systems, infrastructure items, software applications,
hardware, and related equipment and utilities ("Products") to ensure that such
Products will be Year 2000 Compliant by August 31, 1999 except where
non-compliance would not be reasonably likely to have a Material Adverse Effect.
As part of such plan, the Company either (i) has undertaken (or will undertake)
all reasonable efforts to obtain, or has obtained, assurances from its vendors
that such vendors' products are already Year 2000 Compliant or will be Year 2000
Compliant by August 31, 1999; or (ii) the Company will have modified or replaced
such products by August 31, 1999.
Section 3.1.16. Contracts. (a) Except as set forth in the SEC Documents or
the Company Disclosure Letter, neither the Company nor any of its Subsidiaries
is a party or subject to any of the following (whether written or oral, express
or implied): (i) any employment agreement or understanding or obligation, with
respect to severance or termination, to pay liabilities or fringe benefits with
any present or former officer
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or director of the Company or with any consultant of the Company or any of
its Subsidiaries, who is or may be entitled to receive pursuant to the terms
thereof, compensation in excess of $100,000 upon termination of such Person's
employment or engagement; (ii) any plan, contract or understanding providing for
bonuses, pensions, options, deferred compensation, retirement payments, royalty
payments, profit sharing or similar understanding with respect to any present or
former officer or director of the Company or with any consultant of the Company
or any of its Subsidiaries, who is or may be entitled to receive pursuant to the
terms thereof, compensation in excess of $100,000 in any single year, or (iii)
any non-compete or similar agreement or obligation of the Company or any
Subsidiary. Except as set forth in the Company Disclosure Letter or in the SEC
Documents, neither the Company nor any of its Subsidiaries is a party to any
collective bargaining agreement covering their respective employees.
(b) Except as set forth in the SEC Documents, none of the Company, any of
its Subsidiaries, or to the Knowledge of the Company, any other party is in
breach or violation or in default in the performance or observance of any term
or provision of any contract, agreement, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any such Subsidiary is a
party or by which the Company or any such Subsidiary is bound or to which any of
the properties of the Company or any such Subsidiary is subject, which breach,
violation or default is reasonably likely to, individually or in the aggregate,
have a Material Adverse Effect.
Section 3.1.17. Insurance. The Company and its Subsidiaries are insured
with reputable insurers against such risks and in such amounts as are prudent in
accordance with industry practices. All the insurance policies, binders, or
bonds maintained by the Company or its Subsidiaries (the "Policies") have been
maintained in accordance with their respective terms and will remain in full
force and effect after the Closing. Except as set forth in the Company
Disclosure Letter, neither the Company nor any of its Subsidiaries has received
any notice of default with respect to any provision of any such Policies. With
respect to its directors' and officers' liability insurance policies, neither
the Company nor any of its Subsidiaries has failed to give any notice or present
any claim thereunder in due and timely fashion or as required by any such
policies so as to jeopardize full recovery under such Policies.
Section 3.1.18. Registration Rights. Other than as set forth in the Company
Disclosure Letter, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
Section 3.1.19. Brokers. Other than its financial advisor, Donaldson,
Lufkin and Jenrette Securities Corporation ("DLJ"), the Company has not employed
any investment banker,
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broker, finder, or intermediary in connection with the transactions
contemplated by this Agreement, and the Company is under no obligation to pay
any investment banking, brokerage, finder's or similar fee or commission in
connection with such transactions, other than certain fees payable to DLJ, which
are the obligation of the Company, which fees are specified in the Company
Disclosure Letter. The Company has provided to Capital Z copies of all
agreements between the Company or any of its Subsidiaries and DLJ with respect
to the transactions contemplated hereby.
Section 3.1.20. Environmental Protection. (a) The Company and its
Subsidiaries are not in violation of any Environmental Laws, other than such
violations which have not had and are reasonably expected not to have a Material
Adverse Effect and have, and are in compliance with all terms and conditions of,
all permits, licenses and authorizations necessary for the conduct of their
respective businesses, other than such instances of non-compliance which are not
reasonably likely to have a Material Adverse Effect.
(b) There is no site which is listed on either the National Priorities List
pursuant to CERCLA or a similar state or local law list with respect to which
the Company or any Subsidiary has received notice from the United States
Environmental Protection Agency or a state or local agency that the Company or
any Subsidiary is considered to be a potentially responsible party by reason of
arranging for disposal, owning or operating any facility or site or transporting
any Hazardous Waste.
Section 3.1.21. State Takeover Laws. The Company has taken all actions
necessary to render any potentially applicable state takeover law, including,
but not limited to, Section 203 of the DGCL, inapplicable to (a) the
transactions contemplated hereby and by the Ancillary Agreements and (b) any
future transactions between the Company, on the one hand, and the Purchaser
and/or any of its Affiliates or Designated Purchasers and/or any of their
respective Affiliates, on the other hand. The Company has taken all action so
that the entering into of this Agreement and the consummation of the sale of the
Senior Preferred Stock, the issuance of the Warrant and the Contingent Warrant
and the other transactions contemplated by this Agreement do not and will not
result in the grant of any rights to any person under the Certificate of
Incorporation, Bylaws, or other governing instruments of the Company, or
restrict or impair the ability of the Purchaser to vote, or otherwise to
exercise the rights of a stockholder with respect to, shares of the Company that
may be directly or indirectly acquired or controlled by the Purchaser.
Section 3.1.22. Proxy Statement. None of the information in the Proxy
Statement (other than the information referred to in Section 3.2.5) will, at the
time of the mailing of
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the Proxy Statement to the Company's stockholders (or, in the case of any
amendment or supplement thereto, at the time of mailing of such amendment or
supplement, as the case may be) and at the time of the Shareholders' Meeting,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
Section 3.1.23. Fairness Opinion. The Company has obtained an opinion from
DLJ as to the fairness, from a financial point of view, of the Purchase Price to
be paid for the Senior Preferred Stock pursuant to this Agreement. A copy such
fairness opinion has been provided to Capital Z prior to the date hereof.
Section 3.1.24. Certain Assets. (a) Except as set forth in the Company
Disclosure Letter, none of the Company nor any Subsidiary of the Company is in
default and no trigger event has occurred (other than those which have been
cured) under any Securitization Document to which it is a party; and no event
has occurred which with notice or lapse of time or both would constitute such a
default or trigger event under any Securitization Document to which it is a
party.
(b) Except as set forth in the Company Disclosure Letter, none of the
Company nor any Subsidiary of the Company has received any notice from any
Rating Agency or any other Person that (i) the Company or any Subsidiary of the
Company is or, with the passage of time may be, no longer eligible to service
mortgage loans or (ii) that the ratings assigned to any of the Securitization
Securities may be subject to modification, qualification or downgrade by any
Rating Agency.
(c) No breach of any representation or warranty made by the Company or any
Subsidiary of the Company in any Securitization Document (other than those which
have been cured) with respect to any mortgage loans has occurred and none of the
Company nor any Subsidiary of the Company has received any notice of such a
breach of a representation or warranty with respect to any mortgage loans such
that the Company or any Subsidiary of the Company is obligated to substitute or
repurchase any mortgage loans included in a Securitization Transaction.
(d) Other than servicing advances that are expressly permitted under any
applicable Securitization Document, neither the Company nor any of its
Subsidiaries, nor to the Knowledge of the Company, any director or officer of
the Company or any entity controlled by any of them, has made or advanced,
directly or indirectly, payments of principal or interest on any mortgage loan
that is included in any Securitization Transaction that was sponsored by the
Company or a Subsidiary of the Company or that is serviced by the Company or a
Subsidiary of the Company.
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(e) None of the Company nor any Subsidiary of the Company has withdrawn any
amounts on deposit in any collection account, servicing account, distribution
account or other similar account created under any Securitization Documents to
which it is a party, except as expressly provided in such Securitization
Documents.
(f) None of the servicing fees payable to the Company or any Subsidiary of
the Company under any Securitization Document is, or upon the occurrence of any
event will be, subordinated to any distributions to investors in the related
Securitization Transaction.
(g) None of the Company or any Subsidiary of the Company has made any
payment to any third party insurer of a Securitization Transaction to prevent
such insurer from paying a claim under an insurance policy with respect to such
Securitization Transaction.
(h) The value of each mortgage loan or pool mortgage loans and
Securitization Security owned by the Company or any Subsidiary of the Company
has been marked to market on the books and records of the Company or such
Subsidiary.
Section 3.1.25. Fiduciary Activities. The Company and each of its
Subsidiaries has properly administered in all respects material and which could
reasonably be expected to be material to the financial condition of the Company
and its Subsidiaries taken as a whole all accounts for which it acts as a
fiduciary, including but not limited to accounts for which it serves as a
trustee, agent, or custodian, in accordance with the terms of the governing
documents and applicable state and federal law and regulation and common law.
Neither the Company nor any Subsidiary has committed any breach of trust with
respect to any such fiduciary account which is material to or could reasonably
be expected to be material to the financial condition of the Company and its
Subsidiaries taken as a whole, and the accountings for each such fiduciary
account are true and correct in all material respects and accurately reflect the
assets of such fiduciary account.
Section 3.1.26. Warehouse Facilities. The Company and its Subsidiaries have
in full force and effect as of the date hereof (i) committed Warehouse
Facilities in the total amount of approximately $300 million and (ii)
uncommitted Warehouse Facilities in the total amount of approximately $700
million. The Company Disclosure Letter sets forth the names, locations, balances
and limits of all such Warehouse Facilities.
Section 3.2. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Company that:
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Section 3.2.1. Organization. The Purchaser is a limited partnership duly
organized and validly existing under the laws of Bermuda.
Section 3.2.2. Authorization. The Purchaser has full power and authority to
enter into this Agreement and the Ancillary Agreements. Each of this Agreement
and the Ancillary Agreements to which the Purchaser is a party has been duly
authorized, executed and delivered by the Purchaser and constitutes the valid
and legally binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (whether enforcement is sought by proceedings in equity or
at law).
Section 3.2.3. Purchase for Investment. The Purchaser is an accredited
investor as defined under Rule 501(a) of the Securities Act. The Securities and
the Shares will be acquired for investment for the Purchaser's (or its
Affiliates' or a Designated Purchaser's) own account and not with a view to the
resale or distribution of any part thereof, except in compliance with the
provisions of the Securities Act or an exemption therefrom.
Section 3.2.4. Restricted Securities. The Purchaser understands that the
Securities and the Shares are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the Company in
a transaction not involving a public offering and that under such laws and
applicable regulations such Securities and the Shares may be resold without
registration under the Securities Act only in certain limited circumstances.
The Purchaser further agrees that each certificate representing the
Securities or the Shares shall be stamped or otherwise imprinted with a legend
substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS SUCH SECURITIES HAVE BEEN REGISTERED
UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if the Purchaser shall have delivered
to the Company an opinion of counsel reasonably satisfactory to the Company to
the effect that the securities being sold may be publicly sold without
registration under the Securities Act. The foregoing shall not be deemed to
affect the obligations of the Company under the Registration Rights Agreement.
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Section 3.2.5. Purchaser Information. None of the information regarding the
Purchaser supplied by the Purchaser in writing specifically for inclusion in the
Proxy Statement will, at the time of the mailing of the Proxy Statement to the
Company's stockholders (or, in the case of any amendment or supplement thereto,
at the time of mailing of such amendment or supplement, as the case may be) and
at the time of the Stockholders' Meeting, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Section 3.2.6. Consents; No Conflict. (a) Except as set forth in Schedule
3.2.6., no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any governmental
authority, agency or body or any other person on the part of the Purchaser is
required in connection with the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements, except for (i) the filing of a
Pre-Merger Notification Form and related documents under the HSR Act; (ii)
filings required under the Securities Act or the Exchange Act; or (iii) such
consents, approvals, orders, authorizations, registrations, qualifications,
designations, declarations or filings, which if not obtained or made, as the
case may be, are not reasonably likely to impair in any material respect the
ability of the Purchaser to perform any of its obligations or agreements
hereunder or under the Ancillary Agreements or consummate the transactions
contemplated hereby or thereby.
(b) Neither the execution and delivery of this Agreement by Purchaser, nor
the consummation of the transactions contemplated hereby, nor the fulfillment of
the terms and compliance with the provisions hereof will conflict with or result
in a material breach of or a material default (or in an occurrence which with
the lapse of time or action by a third party, or both, could result in a
material default) with respect to any of the terms, conditions or provisions of
any applicable order, writ or decree of any court or of any Governmental
Authority, applicable to Purchaser, or of the governing documents of Purchaser,
or of any indenture, contract, agreement, lease, or other instrument to which
Purchaser is a party or subject or by which Purchaser or any of its properties
or assets are bound, or of any applicable statute, rule, or regulation to which
Purchaser or its businesses is subject.
Section 3.2.7. Brokers. Other than Merrill Lynch & Co., the Purchaser has
not employed any investment banker, broker, finder, or intermediary in
connection with the transactions contemplated by this Agreement, and the
Purchaser is under no obligation to pay any investment banking, brokerage,
finder's or similar fee or commission in connection with such transactions,
other than certain fees payable to Merrill Lynch &
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Co., which are the obligation of the Purchaser (except to the extent
otherwise provided in Section 6.1).
Section 3.2.8. Financing. The Purchaser has or will have at the Initial
Closing and the Supplemental Closing sufficient funds available to it to
consummate the purchase of the Senior Preferred Stock at the Initial Closing and
the Supplemental Closing, as the case may be, as contemplated hereby.
ARTICLE IV.
CERTAIN AGREEMENTS OF THE PARTIES
Section 4.1. Conduct of Business of the Company. Except as set forth in the
Company Disclosure Letter, from the date of this Agreement until the earlier of
the Initial Closing or the termination of this Agreement, unless the prior
written consent of the Purchaser shall have been obtained, and except as
otherwise contemplated by this Agreement, the Company will conduct, and will
cause each of its Subsidiaries to conduct, its operations according to its
ordinary and usual course of business consistent with past practice and shall
use all reasonable efforts to preserve intact its current business
organizations, keep available the service of its current senior officers and key
employees, maintain its material permits and contracts and preserve its
relationships with customers, suppliers and others having material business
dealings with it. Without limiting the generality of the foregoing, and except
as otherwise contemplated by this Agreement or as set forth in the Company
Disclosure Letter, the Company will not, without the prior written consent of
the Purchaser:
(a) issue, sell, grant, dispose of, pledge or otherwise encumber, or
authorize or propose the issuance, sale, disposition or pledge or other
encumbrance of (i) any additional shares of capital stock of any class
(including shares of Common Stock), or any securities or rights convertible
into, exchangeable for, or evidencing the right to subscribe for any shares
of capital stock, or any rights, warrants, options, calls, commitments or
any other agreements of any character to purchase or acquire any shares of
capital stock or any securities or rights convertible into, exchangeable
for, or evidencing the right to subscribe for, any shares of capital stock
or (ii) any other securities in respect of, in lieu of, or in substitution
for, shares of Common Stock outstanding on the date hereof;
(b) redeem, purchase or otherwise acquire, or propose to redeem,
purchase or otherwise acquire, any of its outstanding shares of Common
Stock;
(c) split, combine, subdivide or reclassify any shares of Common Stock
or declare, set aside for payment or pay any
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dividend, or make any other actual, constructive or deemed distribution in
respect of any capital stock of the Company or otherwise make any payments
to stockholders in their capacity as such, except for dividends by a direct
or indirect wholly owned Company Subsidiary;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other
reorganization of the Company or any of the Subsidiaries;
(e) adopt any amendments to its Certificate of Incorporation or Bylaws
or alter through merger, liquidation, reorganization, restructuring or in
any other fashion the corporate structure or ownership of any direct or
indirect Subsidiary, except for Subsidiaries which are not material to the
assets, liabilities, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole;
(f) make, or permit any Company Subsidiary to make, any material
acquisition, by means of merger, consolidation or otherwise, or material
disposition, of assets or securities;
(g) other than in the ordinary course of business consistent with past
practice, incur, or permit any Subsidiary to incur, any material
indebtedness for borrowed money or guarantee any such indebtedness or make
any material loans, advances, or capital contributions to, or other
material investments in, any person other than the Company or any
Subsidiary;
(h) change any method of accounting or accounting practice by the
Company or any Subsidiary, except for such required change in GAAP or
applicable statutory accounting principles;
(i) make, change or revoke, or permit to be made, changed or revoked,
any election or method of accounting with respect to Taxes affecting or
relating to the Company or any of the Subsidiaries;
(j) enter into, or permit to be entered into, any closing or other
agreement or settlement with respect to Taxes affecting or relating to the
Company or any of its Subsidiaries;
(k) (x) take, or agree or commit to take, or permit any Subsidiary to
take, or agree or commit to take, any action that would make any
representation and warranty of the Company hereunder inaccurate in any
material respect at the Initial Closing (except for representations and
warranties which speak as of a particular date, which need
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be accurate only as of such date); (y) omit, or agree or commit to omit, or
permit any Subsidiary to omit, or agree or commit to omit, to take any
action necessary to prevent any such representation and warranty from being
inaccurate in any material respect at the Initial Closing (except for
representations and warranties which speak as of a particular date, which
need be accurate only as of such date), provided however that the Company
shall be permitted to take or omit to take such action which can be cured,
and in fact is cured, at or prior to the Initial Closing; or (z) any action
that would result in, or would be reasonably likely to result in, any of
the conditions set forth in Article V not being satisfied;
(l) settle or compromise any claim brought by any present, former or
purported holder of any securities of the Company in connection with the
transactions contemplated by this Agreement prior to the Initial Closing
Date, without the prior written consent of the Purchaser, which consent may
not be unreasonably withheld; or
(m) authorize, recommend, propose or announce an intention to do any
of the foregoing, or enter into any contract, agreement, commitment or
arrangement to do any of the foregoing.
Section 4.2. Approvals, Etc. Subject to the terms and conditions provided
herein, each of the parties hereto agrees to (i) promptly effect all
registrations, submissions and filings, including but not limited to, filings
under the HSR Act, which may be necessary or required in connection with the
consummation of the transactions contemplated by this Agreement; (ii) use all
reasonable efforts to take all other action and to do all other things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement; and (iii) use all
reasonable efforts to obtain all other necessary or appropriate waivers,
consents and approvals with respect to the transactions contemplated by this
Agreement, including but not limited to all waivers of "change of control" or
similar provisions that may be applicable with respect to the transactions
contemplated by this Agreement.
Section 4.3. Access; Non-Solicitation. (a) The Company hereby agrees that,
from the date hereof until the earlier to occur of the termination of this
Agreement and the Initial Closing Date, the Company will grant the Purchaser and
its (or their) Representatives such access during normal business hours as may
be reasonably requested to the personnel, advisors, properties, books, accounts,
records, contracts and documentation of, or relating to, the business and
operations of the Company and its Subsidiaries, and neither the Company nor any
of its Subsidiaries shall authorize or permit any of their respective officers,
directors or employees, or any representative of the
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Company or any of its Subsidiaries to, (A) solicit, initiate or encourage
(including by way of furnishing information) or take any other action to
facilitate, any inquiry or the making of any proposal which constitutes, or may
reasonably be expected to lead to, any acquisition or purchase of all or a
significant portion of the assets or business of the Company or its subsidiaries
(determined on a consolidated basis), or an equity interest in the Company or
any of its Subsidiaries, or any merger, consolidation, business combination or
similar transaction involving the Company or any of its Subsidiaries or any
other similar transaction (each, an "Alternative Transaction") or agree to or
endorse any Alternative Transaction; or (B) engage in any negotiations
concerning or have any discussions with any Person relating to an Alternative
Transaction.
(b) Notwithstanding the foregoing, the Company may, (subject to compliance
by the Company with the other requirements of this Section 4.3(b)), furnish
information concerning its business, properties or assets to any Person pursuant
to appropriate confidentiality agreements, and may negotiate and participate in
discussions and negotiations with such Person concerning an Alternative
Transaction if (x) such Person has on an unsolicited basis submitted a bona fide
written proposal to the Company relating to any such transaction which the Board
of Directors determines in good faith, after receiving advice from a nationally
recognized investment banking firm, represents a superior transaction to the
transactions contemplated by this Agreement, (y) such transaction is not
conditioned upon obtaining additional financing and is reasonably likely to be
consummated without unreasonable delay compared to the transactions contemplated
by this Agreement and (z) in the opinion of the Board of Directors of the
Company, only after receipt of advice from outside legal counsel to the Company,
such action is required to avoid a breach of the fiduciary duties of the Board
of Directors to the Company's stockholders under applicable law (a proposal
which satisfies clauses (x), (y) and (z) being referred to herein as a "Superior
Proposal"). The Company hereby agrees that if, prior to the Initial Closing, it
shall receive a Superior Proposal, the Company shall promptly thereafter notify
the Purchaser in writing of the receipt of such Superior Proposal and the
material terms and conditions thereof. If the Company determines to accept the
terms of such Superior Proposal, it shall promptly notify the Purchaser in
writing of such determination. Within ten Business Days from receipt of such
notice from the Company, the Purchaser shall notify the Company either that (i)
it is prepared to enter into a transaction with the Company on the terms and
conditions set forth in the Superior Proposal (with such modifications to the
terms thereof which relate to the identity of the other party to the transaction
or which do not adversely affect the economic terms thereof to the Company or
impose material other conditions) (a "Matching Notice"), or (ii) it declines to
match such Superior Offer. If the Purchaser delivers a Matching Notice to the
Company, (x) the Company shall grant to the Purchaser the right (which may be
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exercised by the Purchaser in its sole discretion) to enter into a
definitive agreement for the Alternative Transaction contemplated by such
Superior Proposal on such terms and conditions, except that if such Superior
Proposal contemplates the payment of consideration other than cash and/or
marketable securities, the Purchaser shall have the option to pay the equivalent
value in cash and/or marketable securities, and (y) the parties agree to
negotiate in good faith to complete such definitive agreement within 30 days
from the date such notice is given by the Purchaser. The Company may, during
such 30-day period, negotiate the terms of such Superior Proposal with the
person or persons making such Superior Proposal, it being understood that the
Purchaser's rights hereunder will apply to any subsequent Superior Proposal
which may be made. Notwithstanding the foregoing, if any Superior Proposal is a
modification by a Person of a Superior Proposal which has been previously made
by such Person, the ten-business day period referred to in this Section 4.3(b)
shall instead be deemed to be a five-business day period with respect to such
modified Superior Proposal. If the Purchaser does not give a Matching Notice
within such ten-business day period (or five-business day period in respect of a
modification specified in the preceding sentence), the Company shall be entitled
to terminate this Agreement in order to take the action referred to in Section
4.3(c) and enter into a definitive agreement to effect such Alternative
Transaction and shall, concurrently with such termination, pay to the Purchaser
the fee required by Section 6.2(b). Nothing in this Section 4.3(b) (including,
without limitation, the election by the Purchaser not to give a Matching Notice)
shall limit the Company's obligations to the Purchaser under any other provision
of this Agreement.
(c) Except to the extent permitted by Section 4.3(b), neither the Board of
Directors of the Company nor any committee thereof shall (i) withdraw or modify,
or propose to withdraw or modify, in a manner adverse to the Purchaser, the
approval or recommendation by such Board of Directors or any such committee this
Agreement or the transactions contemplated hereby, including, without
limitation, the Recapitalization, (ii) approve or recommend or propose to
approve or recommend, any Alternative Transaction or (iii) enter into any
agreement with respect to any Alternative Transaction.
Section 4.4. Existing Rights . The Company hereby represents that as of the
date this Agreement, the Company has taken all necessary action to amend the
Existing Rights Agreement so as to prevent the Existing Rights from becoming
exercisable upon the consummation of the transactions contemplated hereby. At or
prior to the Initial Closing, the Company shall cause the Existing Rights
Agreement to be amended to have rights issued thereunder with respect to the
Senior Preferred Stock on a Common Stock equivalent basis.
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Section 4.5. Proxy Statement; Shareholders' Meeting. (a) As promptly as
possible after the date hereof, the Company shall prepare and file with the SEC
the Proxy Statement. The Company shall use it reasonable best efforts to file a
definitive Proxy Statement with the SEC as promptly as practicable after such
initial filing, and promptly thereafter the Company shall mail the definitive
Proxy Statement to the holders of Common Stock.
(b) The Company and Purchaser shall, upon request by the other, furnish the
other with all information concerning itself, its Subsidiaries, directors,
executive officers, stockholders, and partners and such other matters as may be
reasonably necessary or advisable in connection with the Proxy Statement, or any
other statement, filing, notice or application made by or on behalf of the
Company or Purchaser to any third party and/or any Government Authority in
connection with the transactions contemplated by this Agreement.
(c) The Company will take, in accordance with its Certificate of
Incorporation and Bylaws, all action necessary to convene the Shareholders'
Meeting as promptly as practicable after the date the Proxy Statement is mailed
in order to obtain the Shareholder Approval and shall use all commercially
reasonable efforts to solicit such approval. At the Shareholders' Meeting, the
Purchaser shall vote its Voting Securities of the Company in favor of the
Recapitalization, the New Option Plan and any other matters which are required
to be approved by the Company's shareholders in connection with the issuance and
sale of the Senior Preferred Stock and the consummation of the Recapitalization.
Section 4.6. Publicity . Neither the Company nor the Purchaser shall make
any public announcement concerning this Agreement or the transactions
contemplated hereby without the prior written consent of the other, except as
may be required by law or NYSE rule or as may be necessary in connection with
the satisfaction of the conditions to Closing hereunder (provided, that, prior
to such disclosure, if practicable, the Company or the Purchaser, as the case
may be, shall notify the other of such intended disclosure and consult with the
other on the specific disclosure to be made).
Section 4.7. Warehouse Facilities. The Company shall use all commercially
reasonable efforts to cause to be in effect, as of the Initial Closing Date,
Warehouse Facilities consistent with the requirements of Section 5.1.14.
Section 4.8. NYSE Waiver. The Company shall as promptly as practicable
prepare and submit to the NYSE an application seeking the NYSE Waiver, which
application has been approved by the Board of Directors or the Audit Committee
of the Board of Directors. The Company shall comply with Section 312.03 of the
NYSE Listed Company Manual and all other NYSE rules and
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regulations with respect to the NYSE Waiver, pursuant to which the Company
shall mail to all stockholders not later than ten (10) days before the Initial
Closing Date a letter alerting the stockholders to the Company's omission to
seek Shareholder Approval and that the Audit Committee of the Board of Directors
has expressly approved the NYSE Waiver.
Section 4.9. Recapitalization; Rights Offering. As promptly as possible
after obtaining the Shareholder Approval, the Company shall take all necessary
action to effectuate and complete the Recapitalization, including, but not
limited to, (i) making all necessary filings with the NYSE (including having the
NYSE approve for listing on the NYSE the shares of Common Stock into which the
Senior Preferred Stock may be converted) and (ii) filing an amended Certificate
of Incorporation with the Secretary of State of the State of Delaware. Following
the completion of the Recapitalization, the Company will offer to its existing
holders of Common Stock non-transferable rights ("Purchase Rights") to purchase
an aggregate of $25,000,000 in stated value (at $1.00 per share) of Series C
Preferred Stock at the Standby Purchase Price (the "Rights Offering"), which
Purchase Rights shall expire thirty (30) days after issuance. The Rights
Offering shall be subject to the conditions set forth on Exhibit K attached
hereto. The Purchaser shall be provided with copies of all documents relating to
the Recapitalization and the Rights Offering, and all such documents shall be
subject to the comments and prior approval of the Purchaser. Without limiting
any rights of the Purchaser hereunder or under the Certificate of Designations,
if the Shareholder Approval is not obtained, the Company shall take all actions
reasonably requested by the Purchaser and consistent with the DGCL to effect the
increase in the authorized shares of capital stock of the Company contemplated
by the Recapitalization.
Section 4.10. Material Developments. Prior to the Initial Closing, the
Company shall keep the Purchaser advised of all material developments relevant
to its business and to consummation of the transactions contemplated hereby.
Section 4.11. New Option Plan; Other Employee Arrangements. The Company
shall cause the New Option Plan to be effective as of the Initial Closing Date,
subject to shareholder approval and consummation of the Recapitalization. The
Company shall use all reasonable efforts to cause to be effective, at the
Initial Closing, the actions set forth on Schedule 5.1.7.
Section 4.12. Board of Directors. The Company will exercise all authority
and take all such actions (including, without limitation, complying with Section
14(f) of the Exchange Act) which it may take under applicable law which are
necessary to cause, concurrently with the Initial Closing, the Board of
Directors to consist of nine persons as of the Initial Closing Date and to cause
five nominees of the Purchaser to be appointed to the Board of Directors as of
such date. From and after the
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Initial Closing Date, the Company shall (i) cause the four nominees (the
"Series B Designees") designated by the holders of the Series B Preferred Stock
to be elected as directors in accordance with the Series B Certificate of
Designations; and (ii) nominate one additional director designated by Capital Z
(the "Capital Z Nominee") to the Company's stockholders for election as
directors at each annual meeting of stockholders of the Company at which the
applicable class of directors is being elected and shall use its best efforts to
cause the election of each such nominee, including soliciting proxies in favor
of the election of such persons. The Company's By-laws shall be amended,
effective as of the Initial Closing Date, to be consistent with the foregoing
and the Series B Certificate of Designations. If, in connection with the
conversion into Common Stock of all outstanding shares of Series B Preferred
Stock, the holders of a majority of such shares request that the Series B
Designees continue to serve as directors after such conversion, the Company
shall take such actions to assure the continuation of the Series B Designees as
directors after such conversion, until the next meeting at which any such
director is to be elected. In the event that any such nominee elected to the
Board of Directors shall cease to serve as a director for any reason, the
vacancy resulting therefrom shall be filled by such Board with a substitute
person who has been nominated by the Holders of Series B Preferred Stock (in the
case of a Series B Designee) or by Capital Z (in the case of the Capital Z
Nominee). Following the election or appointment of the Series B Designees and
the Capital Z Nominee pursuant to this Section 4.12 and prior to the earlier to
occur of June 30, 1999 and the Supplemental Closing, any amendment or waiver by
the Company of any term or condition of this Agreement, any Ancillary Agreement
or the Certificate of Incorporation or the By-Laws, any termination by the
Company of this Agreement or any Ancillary Agreement, any extension by the
Company of the time for the performance of any of the obligations or other acts
of the Purchaser or waiver or assertion of any of the Company's rights
hereunder, or any other consents or actions by the Board of Directors with
respect of this Agreement or any Ancillary Agreement, will require, and will
require only (with respect to such action on behalf of the Company), the
concurrence of a majority of the Continuing Directors, except to the extent that
applicable law requires that such action be acted upon by the full Board of
Directors, in which case such action will require the concurrence of a majority
of the Directors, which majority shall include each of the Continuing Directors,
and no other action by the Company shall be required for purposes of this
Agreement. After the date of this Agreement, until the earlier to occur of the
consummation of the Supplemental Closing and June 30, 1999, or the earlier
termination of this Agreement, the Purchaser will not exercise any rights it may
have as a stockholder of the Company to effect a change in the composition of
the Board of Directors of the Company, except as provided for in this Section
4.12.
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Section 4.13. Indemnification and Insurance. From and after the Initial
Closing date:
(a) The Company shall include as part of its Certificate of
Incorporation and Bylaws provisions relating to the indemnification of all
current and former directors, officers, employees and agents of the Company
which are no less favorable than the provisions contained in the Company's
Certificate of Incorporation and Bylaws as of the date hereof. Such
provisions shall not be amended, repealed or otherwise modified for a
period of not less than six years after the Initial Closing Date in any
manner that would adversely affect the rights thereunder of individuals who
as of the date hereof were directors, offices, employees or agents of the
Company in respect to actions or omissions occurring at or prior to the
Initial Closing Date (including, without limitation, actions or omissions
which occur in connection with the transactions contemplated by this
Agreement) unless such modification is required by law.
(b) The Company shall, to the fullest extent permitted under
applicable law, indemnify and hold harmless each present and former
director, officer, employee and agent of the Company or any of its
Subsidiaries (collectively, the "Indemnified Parties") against any costs or
expenses (including reasonable attorneys' fees), judgments, fines, losses,
claims, damages, liabilities and amounts paid in settlement in connection
with any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, (x) arising out of or pertaining
to the transactions contemplated by this Agreement or (y) otherwise with
respect to any act or omissions occurring at or prior to the Initial
Closing Date, in each case for a period of not less than six years after
the Initial Closing Date. In the event of any such claim, action, suit,
proceeding or investigation, whether arising before or after the Initial
Closing Date (i) any counsel retained by the Indemnified Parties for any
period after the Initial Closing Date shall be reasonably satisfactory to
the Company, (ii) after the Initial Closing date, the Company shall pay the
reasonable fees and expenses of such counsel, promptly after statements
therefor are received, and (iii) the Company shall cooperate in defense of
any such matter; provided, however, that the Company shall not be liable
for any settlement effected without its written consent (which consent
shall not be unreasonably withheld); and provided, further, that in the
event that any claim or claims for indemnification are asserted or made
within such six-year period, all rights to indemnification in respect of
any such claim or claims shall continue until the disposition of any and
all such claims. The Indemnified Parties as a group may retain only one law
firm to represent them with respect to any single action unless there is,
under applicable standards of professional conduct, a conflict on any
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significant issue between the positions of any two or more indemnified
parties in which case this limitation shall not apply.
(c) For the period not less than six years after the Initial Closing
Date, the Company shall maintain in effect directors' and officers'
liability insurance covering those persons who are currently covered by the
Company's directors' and officers' liability insurance policy on terms no
less favorable that those now applicable to directors and officers of the
Company, provided that in no event shall the Company be required to expend
annually more than 150% of the amount that the Company spent for these
purposes in the last fiscal year to maintain or procure insurance coverage
pursuant hereto; and provided further that if the Company is unable to
obtain the insurance called for by this section the Company will obtain as
much comparable insurance as is available for such amount per year.
Section 4.14. Issuance of Warrant. The Company agrees to issue the Warrant
to the Purchaser on January 4, 1999. Such obligation shall survive termination
of this Agreement for any reason whatsoever.
ARTICLE V.
CLOSING CONDITIONS
Section 5.1. Conditions to Obligation of Purchaser. The obligation of the
Purchaser to purchase the Senior Preferred Stock at the Initial Closing Date and
at the Supplemental Closing Date shall be subject to the satisfaction or waiver
of the following conditions (provided, that, with respect to the Supplemental
Closing, such obligation shall only be subject to the consummation of the
Initial Closing, the consummation of the Recapitalization prior to June 30, 1999
and the satisfaction or waiver of the conditions set forth in Sections 5.1.1,
5.1.2, 5.1.4, 5.1.7, 5.1.8, 5.1.9, 5.1.12 and 5.1.13) on or before the
applicable Closing Date:
Section 5.1.1. Representations and Warranties Complete and Correct. The
representations and warranties of the Company contained in Section 3.1 hereof
which are qualified as to materiality or a Material Adverse Effect shall have
been true and correct when made and shall be true and correct at and as of the
Initial Closing Date, as if made on and as of such date (except for
representations and warranties which speak as of a specific time or date, which
shall be true and correct as of such time and date). The representations and
warranties of the Company contained in Section 3.1 hereof which are not
qualified as to materiality or a Material Adverse Effect shall have been true
and correct in all material respects when made and shall be true and correct in
all material respects at and as of the Initial Closing Date, as if made on and
as of such date (except for
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representations and warranties which speak as of a specific time or date,
which shall be true and correct in all material respects as of such time and
date).
Section 5.1.2. Compliance with this Agreement. The Company shall have
executed and delivered all securities, documents and instruments required to be
executed and delivered on the applicable Closing Date and shall have performed
and complied in all material respects with all agreements and covenants
contained herein which are required to be performed or complied with by it on or
before the applicable Closing Date.
Section 5.1.3. Officers' Certificate. The Purchaser shall have received a
certificate, dated as of the Initial Closing Date and signed by the President or
any Vice President and attested by the Secretary of the Company, certifying that
the conditions set forth in Sections 5.1.1 and 5.1.2 are satisfied on and as of
such date.
Section 5.1.4. Consents; Debt Waivers. (a) The consents, approvals,
authorization, and filings set forth on Schedule 5.1.4(a) shall have been
obtained or made.
(b) The Company shall have received each of the debt waivers and have
obtained consents listed on Schedule 5.1.4(b) hereto on terms set forth therein.
Section 5.1.5. Supporting Documents. The Purchaser shall have received
copies of the following documents:
(i) (A) the Certificate of Incorporation, certified as of a recent
date by the appropriate authority of the Company's jurisdiction of
incorporation; and (B) a certificate of such authority dated as of a recent
date as to the due incorporation and good standing of the Company and each
Subsidiary, and listing all documents of the Company on file with said
authority; and
(ii) a certificate of the Secretary or an Assistant Secretary of the
Company dated as of the Initial Closing Date and certifying: (A) that
attached thereto is a true and complete copy of the Bylaws of the Company
as in effect on the date of such certification; (B) that attached thereto
is a true and complete copy of all resolutions adopted by the Board of
Directors or the stockholders of the Company authorizing the execution,
delivery and performance of this Agreement and the Ancillary Agreements,
the issuance, sale and delivery of the Securities and the Shares, and that
all such resolutions are in full force and effect and are all the
resolutions adopted in connection with the transactions contemplated by
this Agreement and the Ancillary Agreements; (C) that the Certificate of
Incorporation has not been amended since the date of the last amendment
referred to in the certificate delivered pursuant to clause (i)(B) above;
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and (D) that the Bylaws have not been amended since the date of the last
amendment referred to in such certificate pursuant to subclause (ii)(A)
above.
Section 5.1.6. HSR Act. Any required waiting periods under the HSR Act
relating to the transactions to be consummated on the Initial Closing Date shall
have expired or been terminated.
Section 5.1.7. Other Agreements; Additional Investments. The Company shall
have complied in all material respects with all agreements required to be
complied with by it under the Ancillary Agreements on or before the applicable
Closing Date. Each of the Ancillary Agreements entered into prior to the Initial
Closing Date shall be in full force and effect, and none of the other parties
thereto (other than the Purchaser) shall have breached any of their respective
obligations thereunder (unless such breach shall have been cured). The
transactions contemplated by Section 4.11 shall have been completed and the
waivers described on such Schedule 5.1.7 shall be effective.
Section 5.1.8. Material Adverse Change. Since the date of this Agreement,
there shall not have occurred (i) a Material Adverse Effect or (ii) any change
or event which is reasonably likely to have a Material Adverse Effect, provided,
however, that in determining whether a Material Adverse Effect has occurred,
there shall be excluded any change or effect resulting from matters disclosed by
the Company in any SEC Document filed prior to the date hereof or in the Company
Disclosure Letter; and provided, further, that any material worsening of the
capital markets generally or the Company's liquidity needs or access to capital
from that in existence as of the date hereof shall be deemed to result in a
Material Adverse Effect.
Section 5.1.9. Illegality, Etc. No statute, rule or regulation, or order,
decree or injunction enacted, entered, promulgated or enforced by any
Governmental Authority shall be in effect which prohibits or restricts the
consummation of the transactions contemplated hereby or by any of the Ancillary
Agreements.
Section 5.1.10. NYSE Waiver; Stockholder Approval. The NYSE Waiver shall
have been obtained and the terms thereof complied with or, in the event that the
Shareholder Meeting is held prior to the Initial Closing Date, the Shareholder
Approval shall have been obtained. The shares of Common Stock shall continue to
be listed on the NYSE and the NYSE shall not have initiated any proceedings to,
or have otherwise indicated and intention to, delist the Common Stock.
Section 5.1.11. Legal Opinions. The Purchaser shall have received an
opinion or opinions of counsel to the Company,
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dated as of the Initial Closing, covering the matters set forth in Exhibit L.
Section 5.1.12. Litigation. There shall not be pending any litigation,
action or proceeding (an "Action") by any Governmental Authority or any other
Person challenging the transactions contemplated by this Agreement or any of the
Ancillary Agreements or seeking material damages with respect thereto (but only
to the extent such damages will not, in the reasonable judgment of the
Purchaser, be covered by insurance which is maintained by and available to the
Company, unless, notwithstanding such coverage, the settlement or other
disposition of such Action would not be reasonably likely to have a Material
Adverse Effect), which Action, in the reasonable judgment of the Purchaser
(after consultation with the Company), has a material likelihood of success.
Section 5.1.13. Board of Directors. The Board of Directors shall have been
reconstituted as contemplated by Section 4.12 hereof.
Section 5.1.14. Warehouse Facilities. The Company and its Subsidiaries
shall have in full force and effect as of the Initial Closing Date, subject to
the consummation of the Initial Closing, committed Warehouse Facilities in the
total amount of at least $600 million, which commitments have terms of at least
6-12 months. The other terms and conditions of such Warehouse Facilities, when
taken as a whole, shall be at least as favorable to the Company or relevant
Subsidiary as those in effect on the date hereof with respect to existing
Warehouse Facilities.
Section 5.2. Conditions to the Obligations of the Company. The Company's
obligation to sell the Senior Preferred Stock on the Initial Closing Date shall
be subject to the satisfaction or waiver by it of the following conditions on or
before the Initial Closing Date:
Section 5.2.1. Compliance with this Agreement. The Purchaser shall have
executed and delivered all documents required to be executed and delivered on
the applicable Closing Date and shall have performed and complied in all
material respects with all agreements and covenants contained herein or in any
Ancillary Agreement which are required to be performed or complied with by it on
or before the applicable Closing Dates.
Section 5.2.2. Purchaser's Representations and Warranties Complete and
Correct. The Purchaser's representations and warranties contained in Section 3.2
of this Agreement shall be true and correct in all material respects when made
and shall be true and correct in all material respects at and as of the Closing
Date, as if made on and as of such date.
Section 5.2.3. Officer's Certificate. The Company shall have received a
certificate, dated the Initial Closing Date
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and signed by a duly authorized officer of the Purchaser, certifying that
the conditions set forth in Sections 5.2.1 and 5.2.2 are satisfied on and as of
such date.
Section 5.2.4. Consents. (a) The consents, approvals, authorization, and
filings set forth on Schedule 5.1.4(a) shall have been obtained or made.
(b) The Company shall have received each of the debt waivers and obtained
consents listed on Schedule 5.1.4(b) hereto on terms set forth therein.
Section 5.2.5. HSR Act. Any required waiting periods under the HSR Act
relating to the transactions to be consummated on the Initial Closing Date shall
have expired or been terminated.
Section 5.2.6. Illegality, Etc. No statute, rule or regulation, or order,
decree or injunction enacted, entered, promulgated or enforced by any
Governmental Authority shall be in effect which prohibits or restricts the
consummation of the transactions contemplated hereby.
Section 5.2.7. NYSE Waiver; Stockholder Approval. The NYSE Waiver shall
have been obtained and the terms thereof complied with, or in the event that the
Shareholder Meeting is held prior to the Initial Closing Date, the Shareholder
Approval shall have been obtained.
Section 5.2.8. Legal Opinions. The Company shall have received an opinion
or opinions of counsel to the Purchaser, dated as of the Closing Dates, covering
the matters set forth in Exhibit M.
ARTICLE VI.
TERMINATION
Section 6.1. Termination. This Agreement may be terminated as follows:
(a) by mutual written consent of the Company and the Purchaser; or
(b) by either party if the Initial Closing shall not have occurred by May
1, 1999 (and the failure of the Initial Closing to occur is not due to the
breach by either party of this Agreement); provided, however, that if, at such
date, there shall be pending a Superior Proposal in respect of which the
Purchaser may exercise rights under Section 4.3(b), such date may be extended at
the option of the Purchaser (one or more times) until the date that the
Purchaser shall not have any further rights under such Section 4.3(b); or
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(c) by either party (provided that the terminating party is not then in
material breach of any representation, warranty, covenant or other agreement
contained in this Agreement), prior to the Initial Closing, in the event of a
breach by the other party of any representation or warranty contained in this
Agreement which cannot be or has not been cured within 30 days after the giving
of written notice to the breaching Party of such breach and which breach would
cause (i) in the case of a breach by the Company, the conditions set forth in
Section 5.1 not to be satisfied (assuming the Initial Closing were to occur on
the date of such termination), and (ii) in the case of a breach by the
Purchaser, the conditions set forth in Section 5.2 not to be satisfied (assuming
the Initial Closing were to occur on the date of such termination); or
(d) by either party (provided that the terminating party is not then in
material breach of any representation, warranty, covenant or other agreement
contained in this Agreement), prior to the Initial Closing, in the event of a
material breach by the other party of any covenant or agreement contained in
this Agreement which cannot be or has not been cured within 30 days after the
giving of written notice to the breaching party of such breach; or
(e) by either party (provided that the terminating party is not then in
material breach of any representation, warranty, covenant or other agreement
contained in this Agreement), prior to the Initial Closing, in the event any
court of competent jurisdiction in the United States or some other governmental
body or regulatory authority shall have issued an order permanently restraining,
enjoining or otherwise prohibiting the sale of the Senior Preferred Stock and
such order shall have become final and nonappealable; provided that the party
seeking to terminate this Agreement pursuant to this Section 6.1(e) shall have
used all reasonable efforts to remove such order; or
(f) by the Purchaser, prior to the Initial Closing, if the Shareholder's
Meeting has occurred prior to the Initial Closing and the Shareholder Approval
was not received;
(g) by the Purchaser, prior to the Initial Closing, if the Company takes
any action referred to in clauses (i), (ii), or (iii) of Section 4.3(c) or
enters into an agreement to effect an Alternative Transaction pursuant to
Section 4.3(b); or
(h) by the Company, prior to the Initial Closing, in accordance with (and
subject to compliance with the provisions of) Section 4.3(b).
Section 6.2. Effect of Termination; Termination Fee. (a) In the event of
the termination of this Agreement pursuant to Section 6.1, this Agreement shall
forthwith become void and have no effect, without any liability on the part of
any party hereto, other than the provisions of Sections 4.14, 6.2, 7.1,
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7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10 and 7.11, which shall survive any
such termination. Nothing contained in this Section 6.2 shall relieve any party
from liability for any willful breach of this Agreement.
(b) If this Agreement is terminated (i) pursuant to Sections 6.1(b) or (f),
(ii) by the Purchaser pursuant to Section 6.1(g) or (iii) by the Company
pursuant to Section 6.1(h), the Company shall pay to Capital Z (or its designee)
a cash fee equal to $5,500,000, such fee to be payable (A) in the case of a
termination referred to in clause (i) above, if, on or prior to November 15,
1999, (x) the Company (and/or one or more of its Subsidiaries) consummates a
Covered Transaction (as defined below) or enters into a letter of intent,
agreement-in-principle or definitive agreement to effect a Covered Transaction
(and subsequently consummates such Covered Transaction, whether before or after
such first anniversary) or (y) any person or group (other than the Purchaser)
acquires in a single transaction or series of related transactions equity
securities of the Company representing 25% or more of the voting or equity
interests in the Company or (B) in the case of a termination referred to in
clause (ii) or (iii) above, immediately upon such termination.
(c) As used herein:
(i) a "Covered Transaction" shall mean (x) any Alternative Transaction
other than (I) an Excluded Asset Transaction or an Excluded Equity
Transaction or (II) any asset sale undertaken by the Company as part of a
partial liquidation of the Company's business (i.e., and not as part of a
transaction or series of related transactions in which the Company's
business is being sold to one or more persons as an entirety or
substantially as an entirety) or (III) any sale of an equity interest in
the Company or any subsidiary not included in clause (y) below or (y) any
transaction or series of related transactions in which a person or group
provides (or commits to provide) $25,000,000 or more of capital to the
Company and/or its Subsidiaries (whether structured as debt or equity, or a
combination thereof), but not including short-term debt financing;
(ii) an "Excluded Asset Transaction" shall mean the sale of all or a
portion of the Company's servicing business; and
(iii) an "Excluded Equity Transaction" means the issuance of equity
interests in the Company (or securities exercisable for such equity
securities) as part of a "residuals" financing transaction or other working
capital financing, which issuance (together with all other issuances in
connection with any such transactions) does not involve, in the aggregate,
the issuance of equity securities (or rights to acquire same) representing
more than a 10% equity interest in the Company.
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(d) The fee payable under Section 6.2(b)(i) shall be paid on the date a
Covered Transaction is consummated (in the case of clause (A)(x) of Section
6.2(b)) or on the date such acquisition occurs (in the case of clause (A)(y) of
Section 6.2(b)).
(e) The provisions of this Section 6.2(b) supersede the provisions of
paragraph 4(c) of the letter agreement dated November 16, 1998 between Capital Z
and the Company.
(f) All fees payable under this Section 6.2 shall be payable in immediately
available funds to an account specified by Capital Z to the Company in writing.
ARTICLE VII.
MISCELLANEOUS
Section 7.1. Expenses and Indemnification. (a) The Company hereby agrees to
pay or reimburse the Purchaser and its affiliates for all reasonable
out-of-pocket expenses (including the reasonable fees and disbursements of legal
counsel and investment and other advisors and consultants and expenses) incurred
in connection with the transactions contemplated by this Agreement and the
Ancillary Agreements, whether incurred before or after the date hereof and
whether or not such transactions contemplated hereby are made or effected. Any
such amounts shall be paid or reimbursed promptly after invoicing thereof by the
Purchaser which invoicing shall be accompanied by supporting detail evidencing
such expenses.
(b) In addition to the foregoing the Company agrees to indemnify and hold
harmless the Purchaser and any of its officers, partners, members, directors,
employees and affiliates (direct or indirect) from and against all actions,
suits, proceedings (including any investigations or inquiries), claims, losses,
damages, liabilities or expenses of any kind or nature whatsoever ("Claims")
which may be incurred by or asserted against or involve the Purchaser, or any of
its officers, partners, members, directors, employees or affiliates (direct or
indirect) as a result of any third party claim arising out of the transactions
contemplated hereby and, upon demand by the Purchaser or any such officer,
partner, member, director, employee or affiliates, pay or reimburse any of the
Purchaser or such officers, partners, members, directors, employees or
affiliates for any reasonable out-of-pocket legal or other expenses, and other
internal costs incurred by the Purchaser or its officers, partners, members,
directors, employees or affiliates (direct or indirect) in connection with the
investigation, defending or preparing to defend any such Claim, provided that
the foregoing indemnity shall not apply to the extent any Claim arises from any
material breach by the Purchaser of this Agreement or the gross negligence or
willful misconduct of an indemnified party.
52
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(c) Each person entitled to indemnification under Section 7.1(b) (each an
"Indemnified Party") shall give notice to the Company promptly after such
Indemnified Party has actual knowledge of any Claim as to which indemnity may be
sought, and shall permit the Company to assume the defense of any such Claim;
provided, that counsel for the Company, who shall conduct the defense of such
Claim, shall be approved by the Indemnified Party (which approval shall not be
unreasonably withheld) and the Indemnified Party may participate in such defense
at such party's expense (unless the Indemnified Party shall have reasonably
concluded that there is a conflict of interest between the Indemnified Party and
the Company in such action, in which case the reasonable fees and expenses for
one such counsel for all Indemnified Parties (and one local counsel) shall be at
the expense of the Company), and provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Company of its obligations under Section 7.1(b) or this Section 7.1(c) unless
the Company is materially prejudiced thereby. The Company may not, in the
defense of any such Claim, except with the consent of each Indemnified Party
(which consent shall not be unreasonably withheld or delayed), consent to entry
of 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 of such Claim. Each
Indemnified Party shall furnish such information regarding itself or the Claim
in question as the Company may reasonably request in writing and as shall be
reasonably required in connection with the defense of such Claim.
Section 7.2. Survival of Representations and Warranties. The
representations and warranties (i) of the Company set forth in Sections 3.1.1
through 3.1.7, inclusive, and Sections 3.1.19, 3.1.21 and 3.1.22 hereof and (ii)
of the Purchaser set forth in Sections 3.2.1 through 3.2.7, inclusive, shall
survive the Closing, indefinitely. None of the other representations or
warranties made in Article III of this Agreement shall survive the Initial
Closing Date.
Section 7.3. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in person or
mailed by certified or registered mail, return receipt requested, or sent by
facsimile transmission, addressed as follows:
(a) if to the Company:
Aames Financial Corporation
2 California Plaza
350 South Grand Avenue
Los Angeles, California 90071
Attention: Cary Thompson
Fax No.: (323) 210-4537
53
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with a copy to:
Troop Steuber Pasich Reddick & Tobey
2029 Century Park East
Los Angeles, California 90067
Attention: C. N. Franklin Reddick, Esq.
Fax No.: (310) 728-2204
(b) if to the Purchaser:
Capital Z Financial Services
Fund II, L.P.
One Chase Manhattan Plaza
New York, New York 10005
Attention: David Spuria, Esq.
Fax No.: (212) 898-5202
with copies to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
Attention: Thomas M. Cerabino, Esq.
Fax No.: (212) 821-8111
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. All notices, requests,
consents and other communications hereunder shall be deemed to have been duly
given or served on the date on which personally delivered or on the date
actually received, if sent by mail or telex, with receipt acknowledged.
Section 7.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to conflicts of law principles thereof.
Section 7.5. Entire Agreement. This Agreement, including the Schedules and
Exhibits hereto and the Company Disclosure Letter, constitutes the sole and
entire agreement of the parties with respect to the subject matter hereof. All
such documents are hereby incorporated herein by reference.
Section 7.6. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 7.7. Amendments. This Agreement may not be amended or modified, and
no provisions hereof may be waived, without the written consent of the Company
and the Purchaser.
Section 7.8. Severability. If any provision of this Agreement shall be
declared void or unenforceable by any judicial
54
<PAGE>
or administrative authority, the validity of any other provision and of the
entire Agreement shall not be affected thereby.
Section 7.9. Titles and Subtitles. The titles and subtitles used in this
Agreement are for convenience only and are not to be considered in construing or
interpreting any term or provision of this Agreement. The term "date of this
Agreement" and words of similar import (such as "date hereof") shall mean and
refer to December 23, 1998.
Section 7.10. Further Assurances. From and after the date of this
Agreement, upon the request of the Purchaser or the Company, the Company and the
Purchaser shall execute and deliver such instruments, documents and other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
Section 7.11. Successors and Assigns. (a) Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the Company's successors and assigns. Except as provided in
Section 7.11(b) hereof, neither this Agreement nor any rights hereunder shall be
assignable by any party hereto without the prior written consent of the other
party hereto; provided, however, that the Purchaser may assign all or part of
its interest in this Agreement and its rights hereunder to any of its Affiliates
and, thereafter, the term "Purchaser," as applied to the assigning Purchaser,
shall include any such Affiliate to the extent of such assignment and shall mean
the assigning Purchaser and such Affiliates taken collectively; and, provided,
further, that no such assignment shall relieve the Purchaser of its obligations
hereunder.
(b) Notwithstanding the foregoing, prior to the Closing the Purchaser may
assign its rights with respect to the purchase of up to 33 1/3% of the Senior
Preferred Stock to be purchased by the Purchaser hereunder to (i) any Affiliate
of Capital Z, including, for this purpose, Equifin or any Person in which the
direct or indirect partners of Capital Z or its general partner have an economic
interest, and/or (ii) any other Person or Persons not included in the preceding
clause (i) which is approved by the Company, such approval not to be
unreasonably withheld or delayed (each such Person, a "Designated Purchaser").
55
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IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Agreement as of the day and year first above written.
AAMES FINANCIAL CORPORATION
By: /S/ Barbara Polsky
-----------------------------
Name: Barbara Polsky
Title: Executive Vice President
CAPITAL Z FINANCIAL SERVICES FUND II, L.P.,
By its General Partner
CAPITAL Z PARTNERS, L.P.,
By its General Partner
CAPITAL Z PARTNERS, LTD.
By: /S/ Adam M. Mizel
---------------------------
Name: Adam M. Mizel
Title: Partner
56
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CERTIFICATE OF THE VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER SPECIAL RIGHTS, AND QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF
SERIES B CONVERTIBLE PREFERRED STOCK OF
AAMES FINANCIAL CORPORATION
- --------------------------------------------------------------------------------
AAMES FINANCIAL CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies that the following resolutions were adopted by the Board of Directors
of the Corporation (the "Board of Directors") pursuant to authority of the Board
of Directors as required by Section 151 of the Delaware General Corporation Law:
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors in accordance with the provisions of the Certificate of
Incorporation of the Corporation, as amended (the "Certificate of
Incorporation"), the Board of Directors hereby creates a series of the
Corporation's previously authorized preferred stock, par value $0.001 per share
(the "Preferred Stock"), and hereby states the designation and number thereof,
and fixes the voting powers, preferences and relative, participating, optional
and other special rights, and the qualifications, limitations and restrictions
thereof, as follows:
Series B Convertible Preferred Stock:
I. Designation and Amount
The designation of this series of shares shall be "Series B Convertible
Preferred Stock" (the "Series B Preferred Stock") par value $0.001 per share;
the initial stated value per share shall be $1,000.00 (the "Initial Stated
Value"); and the number of shares constituting such series shall be 100,000. The
number of shares of the Series B Preferred Stock may be decreased from time to
time by a resolution or resolutions of the Board of Directors; provided,
however, that such number shall not be decreased below the aggregate number of
shares of the Series B Preferred Stock then outstanding.
II. Rank
A. With respect to dividends, the Series B Preferred Stock shall rank (i)
senior to each other class or series of Preferred Stock, except for the Series C
Convertible Preferred Stock, par value $0.001 per share, of the Corporation (the
"Series C Preferred Stock"); (ii) on a parity with the Series C Preferred Stock;
and (iii) senior to the Corporation's Common Stock, par value $.001 per share
(the "Common Stock"), and, except as specified above, all other classes and
series of capital stock of the Corporation hereafter issued by the Corporation.
With respect to dividends, all equity securities of the Corporation to which the
Series B Preferred Stock ranks senior, including the Common Stock, are
collectively referred to herein as the "Junior Dividend
<PAGE>
Securities"; all equity securities of the Corporation with which the Series B
Preferred Stock ranks on a parity, including the Series C Preferred Stock, are
collectively referred to herein as the "Parity Dividend Securities"; and all
equity securities of the Corporation (other than convertible debt securities) to
which the Series B Preferred Stock ranks junior, with respect to dividends, are
collectively referred to herein as the "Senior Dividend Securities."
B. With respect to the distribution of assets upon liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the Series B
Preferred Stock shall rank (i) senior to each other class or series of Preferred
Stock of the Corporation, except for the Series C Preferred Stock; (ii) on a
parity with the Series C Preferred Stock; and (iii) senior to the Common Stock,
and, except as specified above, all other classes and series of capital stock of
the Corporation hereafter issued by the Corporation. With respect to the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, all equity securities of the
Corporation to which the Series B Preferred Stock ranks senior, including the
Common Stock, are collectively referred to herein as "Junior Liquidation
Securities"; all equity securities of the Corporation (other than convertible
debt securities) to which the Series B Preferred Stock ranks on parity,
including the Series C Preferred Stock, are collectively referred to herein as
"Parity Liquidation Securities"; and all equity securities of the Corporation to
which the Series B Preferred Stock ranks junior are collectively referred to
herein as "Senior Liquidation Securities."
C. The Series B Preferred Stock shall be subject to the creation of Junior
Dividend Securities and Junior Liquidation Securities (collectively, "Junior
Securities"), but no Parity Dividend Securities or Parity Liquidation Securities
(collectively, "Parity Securities") (other than the Series C Preferred Stock) or
Senior Dividend Securities or Senior Liquidation Securities (collectively,
"Senior Securities") shall be created except in accordance with the terms
hereof.
III. Dividends
A. Dividends. Subject to the terms of paragraph D below, shares of Series B
Preferred Stock shall accumulate dividends at a rate of 6.5% per annum (the
"Dividend Rate"), which dividends shall be paid quarterly in cash, in four equal
quarterly installments on the last day of March, June, September and December of
each year, or if any such date is not a Business Day, the Business Day next
preceding such day (each such date, regardless of whether any dividends have
been paid or declared and set aside for payment on such date, a "Dividend
Payment Date"), to holders of record (the "Registered Holders") as they appear
on the stock record books of the Corporation on the fifteenth day prior to the
relevant Dividend Payment Date; provided, however, that during the Accrual
Period (as defined in Article IX hereof) the Corporation shall have the option
to accrue such dividends, which dividends, to the extent so accrued, shall
compound quarterly. Prior to the consummation of the Recapitalization, dividends
shall accrue and accumulate on the Initial Stated Value of each share of Series
B Preferred Stock. Following the consummation of the Recapitalization, dividends
shall accrue and accumulate on the Post-Recapitalization Stated Value of each
share of Series B Preferred Stock. Dividends shall be paid only when, as and if
declared by the Board of Directors out of funds at the time legally available
for the payment of dividends. Dividends shall begin to accumulate on outstanding
shares of Series B Preferred Stock from the date of issuance and shall be deemed
to accumulate from day to day
<PAGE>
whether or not earned or declared until paid. Dividends shall accumulate on
the basis of a 360-day year consisting of twelve 30-day months (four 90-day
quarters) and the actual number of days elapsed in the period for which payable.
B. Accumulation. Dividends on the Series B Preferred Stock shall be
cumulative, and from and after (i) any Dividend Payment Date on which any
dividend that has accumulated or been deemed to have accumulated through such
date has not been paid in full (other than by reason of the election of the
Corporation to accrue dividends during the Accrual Period); or (ii) any payment
date set for a redemption on which such redemption payment has not been paid in
full, additional dividends shall accumulate in respect of the amount of such
unpaid dividends or unpaid redemption payment (the "Arrearage") at 125% of the
stated dividend rate (or such lesser rate as may be the maximum rate that is
then permitted by applicable law). Such additional dividends in respect of any
Arrearage shall be deemed to accumulate from day to day whether or not earned or
declared until the Arrearage is paid, shall be calculated as of such successive
Dividend Payment Date, and shall constitute an additional Arrearage from and
after any Dividend Payment Date to the extent not paid on such Dividend Payment
Date. References in any Article herein to dividends that have accumulated or
that have been deemed to have accumulated with respect to the Series B Preferred
Stock shall include the amount, if any, of any Arrearage together with any
dividends accumulated or deemed to have accumulated on such Arrearage pursuant
to the immediately preceding two sentences. Additional dividends in respect of
any Arrearage may be declared and paid at any time, in whole or in part, without
reference to any regular Dividend Payment Date, to Registered Holders as they
appear on the stock record books of the Corporation on such record date as may
be fixed by the Board of Directors (which record date shall be no less than 10
days prior to the corresponding payment date). Dividends in respect of any
Arrearage shall be paid in cash.
C. Method of Payment. Dividends paid on the shares of Series B Preferred
Stock in an amount less than the total amount of such dividends at the time
accumulated and payable on all outstanding shares of Series B Preferred Stock
shall be allocated pro rata on a share-by-share basis among all such shares then
outstanding. After the Second Anniversary Date, dividends that are declared and
paid in an amount less than the full amount of dividends accumulated on the
Series B Preferred Stock (and on any Arrearage) shall be applied first to the
earliest dividend which has not theretofore been paid. All cash payments of
dividends on the shares of Series B Preferred Stock shall be made in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
D. Special Dividend Rights.
1. In addition to the dividend rights set forth in paragraph A above, prior
to the consummation of the Recapitalization, the holders of shares of Series B
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for such purpose, cash
dividends in an amount per whole share (rounded to the nearest cent) equal to
the Formula Number then in effect times the aggregate per share amount of all
cash dividends declared or paid on the Common Stock. If, prior to the
consummation of the Recapitalization, the Corporation shall pay any dividend or
make any distribution on the Common Stock payable in assets, securities or other
forms of non-cash consideration, then, in each such
<PAGE>
case, the Corporation shall simultaneously pay or make on each whole
outstanding share of the Series B Preferred Stock a dividend or distribution in
like kind equal to the Formula Number then in effect times such dividend or
distribution on each share of the Common Stock. The dividends and distributions
on the Series B Preferred Stock pursuant to this paragraph are hereinafter
referred to as "Participating Dividends." The Corporation shall declare each
Participating Dividend immediately prior to or at the same time it declares any
cash or non-cash dividend or distribution on the Common Stock in respect of
which a Participating Dividend is required to be paid. No cash or non-cash
dividend or distribution on the Common Stock in respect of which a Participating
Dividend is required shall be paid or set aside for payment on the Common Stock
unless a Participation Dividend in respect of such dividend shall be have been
paid. Nothing contained in this paragraph D shall obligate the Company to
declare or pay any dividend or other distribution on the Common Stock or (except
pursuant to paragraph A of this Article III or in connection with a dividend or
distribution on the Common Stock as provided in this paragraph D) the Series B
Preferred Stock.
2. If the Recapitalization is not consummated prior to June 30, 1999, the
Dividend Rate shall be deemed to be 15% per annum during the period commencing
on such date and ending on the date the Recapitalization is consummated.
IV. Liquidation Preference
A. Prior to the Recapitalization. In the event of a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
occurring prior to the consummation of the Recapitalization, the holders of
then-outstanding shares of Series B Preferred Stock shall be entitled to receive
out of the assets of the Corporation, whether such assets are capital or surplus
of any nature, an amount per share equal to the sum of (i) the dividends, if
any, accumulated or deemed to have accumulated thereon, to the date of final
distribution to such holders, whether or not such dividends are declared; and
(ii) the Initial Stated Value thereof, before any payment shall be made or any
assets distributed to the holders of any Junior Liquidation Securities (the
"Initial Preferred Distribution"). After the Initial Preferred Distribution has
been made, the holders of Series B Preferred Stock shall be entitled to share
pro rata with the holders of Common Stock in the distribution of any remaining
assets of the Corporation on the basis of each whole outstanding share of the
Series B Preferred Stock receiving an amount equal to the Formula Number then in
effect times such distribution on each share of the Common Stock. The
distributions on the Series B Preferred Stock pursuant to the immediately
preceding sentence of this paragraph A are hereinafter referred to as
"Participating Liquidation Distributions." No distribution on the Common Stock
in respect of which a Participating Liquidation Distribution is required shall
be paid or set aside for payment on the Common Stock unless a Participating
Liquidation Distribution in respect of such distribution is concurrently paid.
B. After the Recapitalization. Subsequent to the consummation of the
Recapitalization, the holders of the outstanding shares of Series B Preferred
Stock shall be entitled to receive out of the assets of the Corporation, whether
such assets are capital or surplus of any nature, an amount per share equal to
the sum of (i) the dividends, if any, accumulated or deemed to have accumulated
thereon to the date of final distribution to such holders, whether or
<PAGE>
not such dividends are declared; and (ii) the Post-Recapitalization Stated
Value thereof, before any payment shall be made or any assets distributed to the
holders of any Junior Liquidation Securities. After any such payment in full
after the consummation of the Recapitalization, the holders of Series B
Preferred Stock shall not, as such, be entitled to any further participation in
any distribution of assets of the Corporation.
C. Parity Securities. All the assets of the Corporation available for
distribution to stockholders after the liquidation preferences of any Senior
Liquidation Securities shall be distributed ratably (in proportion to the full
distributable amounts to which holders of Series B Preferred Stock and Parity
Liquidation Securities, if any, are respectively entitled upon such dissolution,
liquidation or winding up) among the holders of the then-outstanding shares of
Series B Preferred Stock and Parity Liquidation Securities, if any, when such
assets are not sufficient to pay in full the aggregate amounts payable thereon.
D. Merger Not a Liquidation. Neither a consolidation or merger of the
Corporation with or into any other Person or Persons, nor a sale, conveyance,
lease, exchange or transfer of all or part of the Corporation's assets for cash,
securities or other property to a Person or Persons shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of this
Article IV, but the holders of shares of Series B Preferred Stock shall
nevertheless be entitled from and after any such consolidation, merger or sale,
conveyance, lease, exchange or transfer of all or part of the Corporation's
assets to the rights provided by this Article IV following any such transaction.
Notice of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, stating the payment date or dates when, and the place or places
where, the amounts distributable to each holder of shares of Series B Preferred
Stock in such circumstances shall be payable, shall be given by first-class
mail, postage prepaid, mailed not less than 30 days prior to any payment date
stated therein, to holders of record as they appear on the stock record books of
the Corporation as of the date such notices are first mailed.
V. Redemption
A. Mandatory Redemption. If the Recapitalization has not been consummated
prior to June 30, 1999, then on the sixth anniversary of the Issue Date (the
"Mandatory Redemption Date"), the Corporation shall redeem all outstanding
shares of Series B Preferred Stock by paying the Redemption Price therefor in
cash out of funds legally available for such purpose.
B. Optional Redemption. Commencing on the earlier to occur of (x) the tenth
anniversary of the Issue Date and (y) the date on which fewer than 25% of the
shares of Series B Preferred Stock issued on the Issue Date remain outstanding,
and at all times thereafter, the Corporation may, at its option, redeem all (but
not less than all) outstanding shares of Series B Preferred Stock on a date
specified by the Corporation (the "Optional Redemption Date") by paying the
Redemption Price therefor in cash out of funds legally available for such
purpose.
C. Notice and Redemption Procedures. Notice of the redemption of shares of
Series B Preferred Stock pursuant to paragraph A or B of this Article V (a
"Notice of Redemption") shall be sent to the holders of record of the shares of
Series B Preferred Stock to
<PAGE>
be redeemed by first class mail, postage prepaid, at each such holder's
address as it appears on the stock record books of the Corporation not more than
120 nor fewer than 90 days prior to the Mandatory Redemption Date or Optional
Redemption Date, as applicable, which date shall be set forth in such notice
(the "Redemption Date"); provided that failure to give such Notice of Redemption
to any holder, or any defect in such Notice of Redemption to any holder shall
not affect the validity of the proceedings for the redemption of any shares of
Series B Preferred Stock held by any other holder. In order to facilitate the
redemption of shares of Series B Preferred Stock, the Board of Directors may fix
a record date for the determination of the holders of shares of Series B
Preferred Stock to be redeemed not more than 30 days prior to the date the
Notice of Redemption is mailed. On or after the Mandatory Redemption Date or
Optional Redemption Date, as applicable, each holder of the shares called for
redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the Redemption Price for such shares. From and
after the Mandatory Redemption Date or Optional Redemption Date, as applicable,
all dividends on shares of Series B Preferred Stock shall cease to accumulate
and all rights of the holders thereof as holders of Series B Preferred Stock
shall cease and terminate, except to the extent the Corporation shall default in
payment thereof on the Mandatory Redemption Date or Optional Redemption Date, as
applicable.
D. Deposit of Funds. The Corporation shall, on or prior to the Mandatory
Redemption Date or Optional Redemption Date, as applicable, pursuant to
paragraph C of this Article V, deposit with its transfer agent or other
redemption agent in the Borough of Manhattan, The City of New York having a
capital and surplus of at least $500,000,000 selected by the Board of Directors,
as a trust fund for the benefit of the holders of the shares of Series B
Preferred Stock to be redeemed, cash that is sufficient in amount to redeem the
shares to be redeemed in accordance with the Notice of Redemption, with
irrevocable instructions and authority to such transfer agent or other
redemption agent to pay to the respective holders of such shares, as evidenced
by a list of such holders certified by an officer of the Corporation, the
Redemption Price for such shares upon surrender of their respective share
certificates. Such deposit shall be deemed to constitute full payment of the
Redemption Price for such shares to the holders, and from and after the date of
such deposit, all rights of the holders of the shares of Series B Preferred
Stock that are to be redeemed as stockholders of the Corporation with respect to
such shares, except the right to receive the Redemption Price upon the surrender
of their respective certificates, shall cease and terminate. No dividends shall
accumulate on any shares of Series B Preferred Stock after the Mandatory
Redemption Date or Optional Redemption Date, as applicable, for such shares
(unless the Corporation shall fail to deposit cash sufficient to redeem all such
shares). In case holders of any shares of Series B Preferred Stock called for
redemption shall not, within two years after such deposit, claim the cash
deposited for redemption thereof, such transfer agent or other redemption agent
shall, upon demand, pay over to the Corporation the balance so deposited.
Thereupon, such transfer agent or other redemption agent shall be relieved of
all responsibility to the holders thereof and the sole right of such holders,
with respect to shares to be redeemed, shall be to receive the Redemption Price
as general creditors of the Corporation. Any interest accrued on any funds so
deposited shall belong to the Corporation, and shall be paid to it from time to
time on demand.
<PAGE>
VI. Restrictions on Dividends
So long as any shares of the Series B Preferred Stock are outstanding, the
Board of Directors shall not declare, and the Corporation shall not pay or set
apart for payment any dividend on any Junior Securities or make any payment on
account of, or set apart for payment money for a sinking or other similar fund
for, the repurchase, redemption or other retirement of, any Junior Securities or
Parity Securities or any warrants, rights or options exercisable for or
convertible into any Junior Securities or Parity Securities (other than the
repurchase, redemption or other retirement of debentures or other debt
securities that are convertible or exchangeable into any Junior Securities or
Parity Securities), or make any distribution in respect of the Junior
Securities, either directly or indirectly, and whether in cash, obligations or
shares of the Corporation or other property (other than distributions or
dividends in Junior Securities to the holders of Junior Securities), and shall
not permit any corporation or other entity directly or indirectly controlled by
the Corporation to purchase or redeem any Junior Securities or Parity Securities
or any warrants, rights, calls or options exercisable for or convertible into
any Junior Securities or Parity Securities (other than the repurchase,
redemption or other retirement of debentures or other debt securities that are
convertible or exchangeable into any Junior Securities or Parity Securities or
the repurchase, redemption or other retirement of Junior Securities or Parity
Securities in exchange for Junior Securities or Parity Securities) unless prior
to or concurrently with such declaration, payment, setting apart for payment,
repurchase, redemption or other retirement or distribution, as the case may be,
all accumulated and unpaid dividends on shares of the Series B Preferred Stock
not paid on the dates provided for in paragraph A of Article III hereof
(including Arrearages and accumulated dividends thereon) shall have been paid,
except that when dividends are not paid in full as aforesaid upon the shares of
Series B Preferred Stock, all dividends declared on the Series B Preferred Stock
and any series of Parity Dividend Securities shall be declared and paid pro rata
so that the amount of dividends so declared and paid on Series B Preferred Stock
and such series of Parity Dividend Securities shall in all cases bear to each
other the same ratio that accumulated dividends (including interest accrued on
or additional dividends accumulated in respect of such accumulated dividends) on
the shares of Series B Preferred Stock and such Parity Dividend Securities bear
to each other.
VII. Voting Rights
A. On or prior to the consummation of the Recapitalization, the holders of
Series B Preferred Stock shall be entitled to one thousand (1,000) votes per
share of Series B Preferred Stock at each meeting of stockholders of the
Corporation with respect to any and all matters presented to the stockholders of
the Corporation for their action and consideration. After the consummation of
the Recapitalization, the holders of Series B Preferred Stock shall be entitled
to the number of votes per share of Series B Preferred Stock equal to the number
of shares of Common Stock for which such share of Series B Preferred Stock is
then convertible pursuant to Article VIII at each meeting of stockholders of the
Corporation with respect to any and all matters presented to the stockholders of
the Corporation for their action and consideration.
B. So long as any shares of the Series B Preferred Stock are outstanding,
(i) each share of Series B Preferred Stock shall entitle the holder thereof to
vote on all matters voted on by holders of Common Stock; and (ii) the shares of
Series B Preferred Stock shall vote
<PAGE>
together with shares of Common Stock (and any shares of Series C Preferred
Stock entitled to vote) as a single class.
C. At each annual meeting of the stockholders of the Corporation, the
holders of Series B Preferred Stock, voting as a separate class, shall have the
right to elect, by the written consent (if action by written consent is
permitted) or affirmative vote of the holders of a majority of the outstanding
shares of Series B Preferred Stock, four members of a separate class of
directors, each of whom shall serve until the next annual meeting of the
stockholders of the Corporation or until his or her successor is elected and
qualified. Such vote or consent shall be taken in accordance with the procedures
specified in paragraph F below. The initial directors shall be [insert names].
D. Without the written consent (if action by written consent is permitted)
or affirmative vote of the holders of a majority of the outstanding shares of
Series B Preferred Stock and Series C Preferred Stock, voting together as a
single class, the Corporation shall not (i) authorize, create or issue, or
increase the authorized amount of, (x) any Senior Securities or Parity
Securities or (y) any class or series of capital stock or any security
convertible into or exercisable for any class or series of capital stock,
redeemable mandatorily or redeemable at the option of the holder thereof at any
time on or prior to the Mandatory Redemption Date (whether or not only upon the
occurrence of a specified event) or (ii) enter into any Transaction (as defined
in paragraph H of Article VIII). Such vote or consent shall be taken in
accordance with the procedures specified in paragraph F below.
E. Without the written consent (if action by written consent is permitted)
or affirmative vote of the holders of at least a majority of the outstanding
shares of Series B Preferred Stock and Series C Preferred Stock, voting together
as a single class, the Corporation shall not (i) amend, alter or repeal any
provision of the Certificate of Incorporation or the Bylaws, if the amendment,
alteration or repeal alters or changes the powers, preferences or special rights
of the Series B Preferred Stock so as to affect them materially and adversely or
(ii) authorize or take any other action if such action alters or changes any of
the rights of the Series B Preferred Stock in any respect or otherwise would be
inconsistent with the provisions of this Certificate of Designations and the
holders of any class or series of the capital stock of the Corporation is
entitled to vote thereon. Such vote or consent shall be taken in accordance with
the procedures specified in paragraph F below.
F. The foregoing rights of holders of shares of Series B Preferred Stock to
take any actions as provided in this Article VII may be exercised at any annual
meeting of stockholders or at a special meeting of stockholders held for such
purpose as hereinafter provided or at any adjournment thereof, or by the written
consent, delivered to the Secretary of the Corporation, of the holders of the
minimum number of shares required to take such action, if action by written
consent of stockholders of the Corporation is then permitted.
The Chairman of the Board of the Corporation may call, and upon written
request of holders of record of 35% of the outstanding shares of Series B
Preferred Stock, if the holders of Series B Preferred Stock are to vote
separately as a single class, or the holders of record of 35% of the outstanding
shares of Series B Preferred Stock and Series C Preferred Stock, if the
<PAGE>
holders of shares of Series B Preferred Stock are to vote as a class with
the holders of shares of any Series C Preferred Stock, addressed to the
Secretary of the Corporation at the principal office of the Corporation shall
call, a special meeting of the holders of shares entitled to vote as provided
herein. Such meeting shall be held within 30 days after delivery of such request
to the Secretary, at the place and upon the notice provided by law and in the
By-laws of the Corporation for the holding of meetings of stockholders.
At each meeting of stockholders at which the holders of shares of Series B
Preferred Stock shall have the right, voting separately as a single class or as
a class with the holders of shares of any Series C Preferred Stock, to elect
directors of the Corporation as provided in paragraph C above or to take any
action, the presence in person or by proxy of the holders of record of one-third
of the total number of shares of Series B Preferred Stock, if the holders of
shares of Series B Preferred Stock are to vote separately as a single class, or
the holders of record of one-third of the total number of shares of Series B
Preferred Stock and Series C Preferred Stock, if the holder of shares of Series
B Preferred Stock are to vote as a class with the holders of shares of Series C
Preferred Stock, then outstanding and entitled to vote on the matter shall be
necessary and sufficient to constitute a quorum. At any such meeting or at any
adjournment thereof:
(A) the absence of a quorum of the holders of shares of Series B
Preferred Stock, if the holders of Series B Preferred Stock are to vote
separately as a single class, shall not prevent the election of directors
other than those to be elected by the holders of shares of Series B
Preferred Stock, and the absence of a quorum of the holders of shares of
any other class or series of capital stock shall not prevent the election
of directors to be elected by the holders of shares of Series B Preferred
Stock or the taking of any action as provided in this Article VII; and
(B) in the absence of a quorum of the holders of shares of Series B
Preferred Stock, if the holders of Series B Preferred Stock are to vote
separately as a single class, or the holders of shares of Series B
Preferred Stock and Series C Preferred Stock, if the holders of Series B
Preferred Stock are to vote as a class with the holders of shares of Series
C Preferred Stock, a majority of the holders of such shares present in
person or by proxy shall have the power to adjourn the meeting as to the
actions to be taken by the holders of shares of Series B Preferred Stock or
the holders of Series B Preferred Stock and Series C Preferred Stock, as
the case may be, from time to time and place to place without notice other
than announcement at the meeting until a quorum shall be present.
For taking of any action as provided in this Article VII by the holders of
shares of Series B Preferred Stock voting separately as a single class or
together with the holders of shares of Series B Preferred Stock and Series C
Preferred Stock as a single class, as the case may be, each such holder shall
have one vote for each share of such stock standing in his name on the transfer
books of the Corporation as of any record dated fixed for such purpose or, if no
such date be fixed, at the close of business on the Business Day next preceding
the day on which notice is given, or if notice if waived, at the close of
business on the Business Day next preceding the day on which the meeting is
held.
<PAGE>
In case any vacancy shall occur among the directors elected by the holders
of shares of Series B Preferred Stock, as provided in paragraph C above, such
vacancy may be filled for the unexpired portion of the term by vote of the
remaining directors theretofore elected by such holders (if there is a remaining
director), or the last remaining director's successor in office. If any such
vacancy is not so filled within 20 days after the creation thereof or if all
directors so elected by the holders of Series B Preferred Stock shall cease to
serve as directors before their terms shall expire, the holders of the Series B
Preferred Stock then outstanding and entitled to vote for such directors may, by
written consent as herein provided (if action by written consent is permitted),
or at a special meeting of such holders called as provided herein, elect
successors to hold office for the unexpired terms of the directors whose places
shall be vacant.
Any director elected by the holders of shares of Series B Preferred Stock
voting separately as a single class may be removed from office with or without
cause by the vote or written consent (if action by written consent is permitted)
of the holders of at least a majority of the outstanding shares of Series B
Preferred Stock. A special meeting of the holders of shares of Series B
Preferred Stock may be called in accordance with the procedures set forth in
this paragraph F.
G. The Corporation shall not enter into any agreement or issue any security
that prohibits, conflicts or is inconsistent with, or would be breached by, the
Corporation's performance of its obligations hereunder.
VIII. Conversion
The holders of the Series B Preferred Stock shall have conversion rights as
follows:
A. Each share of Series B Preferred Stock shall be convertible at the
direction of, and by notice to the Corporation from, the holders of a
majority of the outstanding shares of Series B Preferred Stock, at any
time, at the office of the Corporation or any transfer agent for such
Series, into one thousand (1,000) fully paid and nonassessable shares
of Common Stock subject (x) to adjustment from time to time as
provided below (as so adjusted, the "conversion ratio") and (y) (prior
to the consummation of the Recapitalization) to limitations resulting
from the available number of shares of Common Stock which may be
reserved for issuance upon such conversion, provided ,that any
conversion pursuant to this paragraph A of less than all of the
outstanding shares of Series B Preferred Stock shall be on a pro rata
basis amongst all holders of Series B Preferred Stock. [Note: If the
certificate of incorporation is amended in connection with the
Recapitalization, as contemplated by the Preferred Stock Purchase
Agreement, the number "1,000" in this paragraph shall be "1"]
B. If the holders of a majority of the outstanding shares of Series B
Preferred Stock give notice of conversion under paragraph A above, the
Corporation shall notify all other record holders of Series B
Preferred Stock (a "Conversion Notice"). Following receipt of a
Conversion Notice, the holders of Series B Preferred Stock
<PAGE>
shall surrender the certificate or certificates therefor duly
endorsed, at the office of the Corporation or of any transfer agent
for such Series, and shall state therein the name or names in which
the certificate or certificates for shares of Common Stock are to be
issued. The Corporation shall, as soon as practicable thereafter,
issue and deliver at such office to such holder, or to the nominee or
nominees of such holder, a certificate or certificates for the number
of shares of Common Stock to which such holder shall be entitled as
aforesaid. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such
Conversion Notice and the person or persons entitled to receive the
shares of Common Stock issuable upon such conversion shall be treated
for all purposes as the recordholder or holders of such shares of
Common Stock as of such date. The issuance of certificates or shares
of Common Stock upon conversion of shares of Series B Preferred Stock
shall be made without charge for any issue, stamp or other similar tax
in respect of such issuance.
C. No fractional shares shall be issued upon conversion of any shares of
Series B Preferred Stock and the number of shares of Common Stock to
be issued shall be rounded down to the nearest whole share, and the
holder of Series B Preferred Stock shall be paid in cash for any
fractional share.
D. In case at any time or from time to time the Corporation shall pay any
dividend or make any other distribution to the holders of its Common
Stock or other class of securities, or shall offer for subscription
pro rata to the holders of its Common Stock or other class of
securities any additional shares of stock of any class or any other
right, or there shall be any capital reorganization or
reclassification of the Common Stock of the Corporation or
consolidation or merger of the Corporation with or into another
corporation, or any sale or conveyance to another corporation of the
property of the Corporation as an entirety or substantially as an
entirety, or there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, then, in any one or more
of said cases the Corporation shall give at least 20 days' prior
written notice (the time of mailing of such notice shall be deemed to
be the time of giving thereof) to the registered holders of the Series
B Preferred Stock at the addresses of each as shown on the books of
the Corporation maintained by the Transfer Agent thereof of the date
on which (i) the books of the Corporation shall close or a record
shall be taken for such stock dividend, distribution or subscription
rights or (ii) such reorganization, reclassification, consolidation,
merger, sale or conveyance, dissolution, liquidation or winding up
shall take place, as the case may be, provided that in the case of any
Transaction to which paragraph H applies the Corporation shall give at
least 30 days' prior written notice as aforesaid. Such notice shall
also specify the date as of which the holders of the Common Stock of
record shall participate in said dividend, distribution or
subscription rights or shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale or
conveyance or participate in such dissolution, liquidation or winding
up, as the case may be. Failure to give such notice shall not
invalidate any action so taken.
<PAGE>
E. From and after the Recapitalization, the Corporation shall at all
times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of Series B Preferred Stock, such number of
its shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding shares of Series B Preferred
Stock, and if at any time the number of authorized but unissued shares
of Common Stock shall not be sufficient to effect the conversion of
all then outstanding shares of Series B Preferred Stock, then in
addition to such other remedies as shall be available to the holder of
Series B Preferred Stock, the Corporation will take such corporate
action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purposes.
F. Any notice required by the provisions of paragraph D to be given the
holders of shares of Series B Preferred Stock shall be deemed given if
sent by facsimile transmission, by telex, or if deposited in the
United States mail, postage prepaid, and addressed to each holder of
record at his, her or its address appearing on the books of the
Corporation.
G. The conversion ratio shall be subject to adjustment from time to time
as follows:
(i) In case the Corporation shall at any time or from time to
time after the Issue Date (A) pay a dividend or make a distribution,
on the outstanding shares of Common Stock in shares of Common Stock,
(B) subdivide the outstanding shares of Common Stock into a larger
number of shares of Common Stock, (C) combine the outstanding shares
of Common Stock into a smaller number of shares or (D) issue by
reclassification of the shares of Common Stock any shares of capital
stock of the Corporation, then, and in each such case, the conversion
ratio in effect immediately prior to such event or the record date
therefor, whichever is earlier, shall be adjusted so that the holder
of any shares of Series B Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common
Stock or other securities of the Corporation which such holder would
have owned or have been entitled to receive after the happening of any
of the events described above, had such shares of Series B Preferred
Stock been surrendered for conversion immediately prior to the
happening of such event or the record date therefor, whichever is
earlier. An adjustment made pursuant to this clause (i) shall become
effective (x) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the
determination of holders of shares of Common Stock entitled to receive
such dividend or distribution, or (y) in the case of any such
subdivision, reclassification or combination, at the close of business
on the day upon which such corporate action becomes effective.
(ii) In the case the Corporation shall, after the Issue Date,
issue shares of Common Stock at a price per share, or securities
convertible into or exchangeable for shares of Common Stock
("Convertible Securities") having a
<PAGE>
"Conversion Price" (as defined below) less than the Current Market
Price (for a period of 15 consecutive trading days prior to such
date), then, and in each such case, the conversion ratio shall be
adjusted so that the holder of each share of Series B Preferred Stock
shall be entitled to receive, upon the conversion thereof, the number
of shares of Common Stock determined by multiplying (A) the applicable
conversion ratio on the day immediately prior to such date by (B) a
fraction, the numerator of which shall be the sum of (1) the number of
shares of Common Stock outstanding on the date on which such shares or
Convertible Securities are issued and (2) the number of additional
shares of Common Stock issued, or into which the Convertible
Securities may convert, and the denominator of which shall be the sum
of (x) the number of shares of Common Stock outstanding on such date
and (y) the number of shares of Common Stock which the aggregate
consideration receivable by the Corporation for the total number of
shares of Common Stock so issued, or the number of shares of Common
Stock which the aggregate of the Conversion Price of such Convertible
Securities so issued, would purchase at such Current Market price on
such date. An adjustment made pursuant to this clause (ii) shall be
made on the next Business Day following the date on which any such
issuance is made and shall be effective retroactively immediately
after the close of business on such date. For purposes of this clause
(ii), the aggregate consideration receivable by the Corporation in
connection with the issuance of any securities shall be deemed to be
the sum of the aggregate offering price to the public (before
deduction of underwriting discounts or commissions and expenses
payable to third parties), and the "Conversion Price" of any
Convertible Securities is the total amount received or receivable by
the Corporation as consideration for the issue or sale of such
Convertible Securities (before deduction of underwriting discounts or
commissions and expenses payable to third parties) plus the minimum
aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion, exchange or exercise of any such
Convertible Securities. Neither (A) the issuance of any shares of
Common Stock (whether treasury shares or newly issued shares) pursuant
to a dividend or distribution on, or subdivision, combination or
reclassification of, the outstanding shares of Common Stock requiring
an adjustment in the conversion ratio pursuant to clause (i) of this
paragraph G, or pursuant to any employee benefit plan or program of
the Corporation or pursuant to any option, warrant, right, or
Convertible Security outstanding as of the date hereof (including, but
not limited to, the Rights, the Series B Preferred Stock, the Series C
Preferred Stock and the Warrants) nor (B) the issuance of shares of
Common Stock pursuant thereto shall be deemed to constitute an
issuance of Common Stock or Convertible Securities by the Corporation
to which this clause (ii) applies. Upon expiration of any Convertible
Securities which shall not have been exercised or converted and for
which an adjustment shall have been made pursuant to this clause (ii),
the Conversion Price computed upon the original issue thereof shall
upon expiration be recomputed as if the only additional shares of
Common Stock issued were such shares of Common Stock (if any) actually
issued upon exercise or conversion of such Convertible Securities and
the consideration received therefor was the
<PAGE>
consideration actually received by the Corporation for the issue of
such Convertible Securities (whether or not exercised or converted)
plus the consideration actually received by the Corporation upon such
exercise of conversion.
(iii) In case the Corporation shall at any time or from time to
time after the Issue Date declare, order, pay or make a dividend or
other distribution (including, without limitation, any distribution of
stock or other securities or property or rights or warrants to
subscribe for securities of the Corporation or any of its Subsidiaries
by way of dividend or spin-off), on its Common Stock, other than (A)
regular quarterly dividends payable in cash in an aggregate amount not
to exceed 15% of net income from continuing operations before
extraordinary items of the Corporation, determined in accordance with
generally accepted accounting principles, during the period (treated
as one accounting period) commencing on July 1, 1998, and ending on
the date such dividend is paid or (B) dividends or distributions of
shares of Common Stock which are referred to in clause (i) of this
paragraph G, then, and in each such case, the conversion ratio shall
be adjusted so that the holder of each share of Series B Preferred
Stock shall be entitled to receive, upon the conversion thereof, the
number of shares of Common Stock determined by multiplying (1) the
applicable conversion ratio on the day immediately prior to the record
date fixed for the determination of stockholders entitled to receive
such dividend or distribution by (2) a fraction, the numerator of
which shall be the then Current Market Price per share of Common Stock
for the period of 20 Trading Days preceding such record date, and the
denominator of which shall be such Current Market Price per share of
Common Stock for the period of 20 Trading Days preceding such record
date, less the Fair Market Value (as defined in Article IX) per share
of Common Stock (as determined in good faith by the Board of Directors
of the Corporation, a certified resolution with respect to which shall
be mailed to each holder of shares of Series B Preferred Stock) of
such dividend or distribution; provided, however, that in the event of
a distribution of shares of capital stock of a Subsidiary of the
Corporation (a "Spin-Off") made to holders of shares of Common Stock,
the numerator of such fraction shall be the sum of the Current Market
Price per share of Common Stock for the period of 20 Trading Days
preceding the 35th Trading Day after the effective date of such
Spin-Off and the Current Market Price of the number of shares (or the
fraction of a share) of capital stock of the Subsidiary which is
distributed in such Spin-Off in respect of one share of Common Stock
for the period of 20 Trading Days preceding such 35th Trading Day and
the denominator of which shall be the current market price per share
of the Common Stock for the period of 20 Trading Days proceeding such
35th Trading Day. An adjustment made pursuant to this clause (iii)
shall be made upon the opening of business on the next Business Day
following the date on which any such dividend or distribution is made
and shall be effective retroactively immediately after the close of
business on the record date fixed for the determination of
stockholders entitled to receive such dividend or distribution;
provided, however, if the proviso to the preceding sentence applies,
<PAGE>
then such adjustment shall be made and be effective as of such
35th Trading Day after the effective date of such Spin-Off.
(iv) For purposes of this paragraph G, the number of shares of
Common Stock at any time outstanding shall not include any shares of
Common Stock then owned or held by or for the account of the
Corporation.
(v) The term "dividend", as used in this paragraph G shall mean a
dividend or other distribution upon stock of the Corporation except
pursuant to the Rights Agreement (as defined in Article IX).
Notwithstanding anything in this Article VIII to the contrary, the
conversion ratio shall not be adjusted as a result of any dividend,
distribution or issuance of securities of the Corporation pursuant to
the Rights Agreement.
(vi) Anything in this paragraph G to the contrary
notwithstanding, the Corporation shall not be required to give effect
to any adjustment in the conversion ratio unless and until the net
effect of one or more adjustments (each of which shall be carried
forward), determined as above provided, shall have resulted in a
change of the conversion ratio by at least one-hundredth of one share
of Common Stock, and when the cumulative net effect of more than one
adjustment so determined shall be to change the conversion ratio by at
least one-hundredth of one share of Common Stock, such change in
conversion ratio shall thereupon be given effect.
(vii) The certificate of any firm of independent public
accountants of recognized standing selected by the Board of Directors
of the Corporation (which may be the firm of independent public
accountants regularly employed by the Corporation) shall be
presumptively correct for any computation made under this paragraph G.
(viii) If the Corporation shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a
dividend or other distribution, and shall thereafter and before the
distribution to stockholders thereof legally abandon its plan to pay
or deliver such dividend or distribution, then thereafter no
adjustment in the number of shares of Common Stock issuable upon
exercise of the right of conversion granted by this paragraph G or in
the conversion ratio then in effect shall be required by reason of the
taking of such record.
(ix) There shall be no adjustment of the conversion ratio in case
of the issuance of any stock of the Corporation in a merger,
reorganization, acquisition or other similar transaction except as set
forth in paragraph G(i), G(ii) and H of this Article VIII.
H. In case of any reorganization or reclassification of outstanding
shares of Common Stock (other than a reclassification covered by
paragraph G(i) of this Article VIII, or in case of any consolidation
or merger of the Corporation with or into another
<PAGE>
corporation, or in the case of any sale or conveyance to another
corporation of the property of the Corporation as an entirety or
substantially as an entirety (each of the foregoing being referred to
as a "Transaction"), each share of Series B Preferred Stock then
outstanding shall thereafter be convertible into, in lieu of the
Common Stock issuable upon such conversion prior to consummation of
such Transaction, the kind and amount of shares of stock and other
securities and property receivable (including cash) upon the
consummation of such Transaction by a holder of that number of shares
of Common Stock into which one share of Series B Preferred Stock was
convertible immediately prior to such Transaction (including, on a pro
rata basis, the cash, securities or property received by holders of
Common Stock in any tender or exchange offer that is a step in such
Transaction). In case securities or property other than Common Stock
shall be issuable or deliverable upon conversion as aforesaid, then
all reference in this paragraph H shall be deemed to apply, so far as
appropriate and as nearly as may be, to such other securities or
property.
I. Upon any adjustment of the conversion ratio then in effect and any
increase or decrease in the number of shares of Common Stock issuable
upon the operation of the conversion set forth in Article VIII, then,
and in each such case, the Corporation shall promptly deliver to the
registered holders of the Series B Preferred and Common Stock, a
certificate signed by the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Corporation setting forth in reasonable detail the
event requiring the adjustment and the method by which such adjustment
was calculated and specifying the conversion ratio then in effect
following such adjustment and the increased or decreased number of
shares issuable upon the conversion set forth in this Article VIII.
IX. Additional Definitions
For the purposes of this Certificate of Designations of Series B Preferred
Stock, the following terms shall have the meanings indicated:
"Accrual Period" means the end of the first quarterly period following the
Second Anniversary Date.
"Beneficially Own" with respect to any securities means having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act as in effect on the date hereof, except that a Person shall be
deemed to Beneficially Own all such securities that such Person has the right to
acquire whether such right is exercisable immediately or after the passage of
time). The terms "Beneficial Ownership" and "Beneficial Owner" have correlative
meanings.
"Business Day" means any day, other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
<PAGE>
"Bylaws" means the Bylaws of the Corporation, as amended.
"Current Market Price", when used with reference to shares of Common Stock
or other securities on any date, shall mean the closing price per share of
Common Stock or such other securities on such date and, when used with reference
to shares of Common Stock or other securities for any period shall mean the
average of the daily closing prices per share of Common Stock or such other
securities for such period. The closing price for each day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock or such other securities are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock or such
other securities are listed or admitted to trading or, if the Common Stock is
not listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. National Market System or such other
securities are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Common Stock or such other securities selected by the Board of Directors
of the Corporation. If the Common Stock or such other securities are not
publicly held or so listed or publicly traded, "Current Market Price" shall mean
the Fair Market Value per share of Common Stock or of such other securities as
determined in good faith by the Board of Directors of the Corporation based on
an opinion of an independent investment banking firm with an established
national reputation as a valuer of securities, which opinion may be based on
such assumption as such firm shall deem to be necessary and appropriate.
"Equity Securities" of any Person means any and all common stock, preferred
stock and any other class of capital stock of, and any partnership or limited
liability company interests of such Person or any other similar interests of any
Person that is not a corporation, partnership or limited liability company.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, from time to time.
"Fair Market Value" shall mean the amount which a willing buyer would pay a
willing seller in an arm's-length transaction.
"Formula Number" shall mean one thousand (1,000) prior to consummation of
the Recapitalization, provided, however, that if at any time prior to the
consummation of the Recapitalization, the Corporation shall (i) declare or pay
any dividend or make any distribution on the Common Stock, payable in shares of
Common Stock; (ii) subdivide (by a stock split or otherwise) the outstanding
shares of Common Stock into a larger number of shares of Common Stock; or (iii)
combine (by a reverse stock split or otherwise) the outstanding shares of Common
Stock into a smaller number of shares of Common Stock, then in each such case
the Formula Number in effect immediately prior to such event shall be adjusted
to a number determined by
<PAGE>
multiplying the Formula Number then in effect by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event (and rounding the result
to the nearest whole number); and provided further, that, if prior to the
consummation of the Recapitalization the Corporation shall issue any shares of
its capital stock in a merger, reclassification, or change of the outstanding
shares of Common Stock, then in each such event the Formula Number shall be
appropriately adjusted to reflect such merger, reclassification, or change so
that each share of Series B Preferred Stock continues to be the economic
equivalent of a Formula Number of shares of Common Stock immediately prior to
such merger, reclassification, or change.
"Group" has the meaning set forth in Rule 13d-5 under the Exchange Act.
"Issue Date" shall mean the first date on which shares of Series B
Preferred Stock are issued.
"Person" means any individual, corporation, company, association,
partnership, joint venture, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Post-Recapitalization Stated Value" shall be equal to $1.00.
"Recapitalization" means the amendment of the Corporation's Certificate of
Incorporation to increase the authorized shares of Common Stock from 50,000,000
to [250,000,000], and the authorized shares of Preferred Stock from 1,000,000 to
[125,000,000], and the subsequent one thousand-for-one split of Series B
Preferred Stock and Series C Preferred Stock. [Increased number of authorized
shares is subject to final determination]
"Redemption Price" of a share of Class B Preferred Stock shall mean the sum
of (a) the dividends, if any, accumulated or deemed to have accumulated thereon
to the Mandatory Redemption Date or Optional Redemption Date, as applicable,
whether or not such dividends are declared plus (b) either (i) the Initial
Stated Value thereof (if the Recapitalization has not been consummated prior to
June 30, 1999) or (ii) the Post-Recapitalization Stated Value thereof (if the
Recapitalization has been consummated prior to June 30, 1999), in each case
subject to adjustment for splits, reclassifications, recombinations or other
similar events.
"Rights" shall mean any rights to purchase securities of the Corporation
issued pursuant to any Rights Agreement.
"Rights Agreement" shall mean the Rights Agreement, dated as of June 21,
1996, between the Company and Wells Fargo Bank as rights agent, and all
amendments, supplements and replacements thereof.
"Second Anniversary Date" means the second anniversary of the Issue Date.
"Subsidiary" means, as to any Person, any other Person of which more than
50% of the shares of the Voting Securities or other voting interests are owned
or controlled, or the
<PAGE>
ability to select or elect 50% or more of the directors or similar managers
is held, directly or indirectly, by such first Person and one or more of its
Subsidiaries.
"Trading Day" means a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock is not listed or admitted to
trading on any national securities exchange a Business Day.
"Voting Securities" means, (i) with respect to the Company, the Equity
Securities of the Company entitled to vote generally for the election of
directors of the Company, and (ii) with respect to any other Person, any
securities of or interests in such Person entitled to vote generally for the
election of directors or any similar managing person of such Person.
X. Miscellaneous
A. Notices. Any notice referred to herein shall be in writing and, unless
first-class mail shall be specifically permitted for such notices under the
terms hereof, shall be deemed to have been given upon personal delivery thereof,
upon transmittal of such notice by telecopy (with confirmation of receipt by
telecopy or telex) or five days after transmittal by registered or certified
mail, postage prepaid, addressed as follows:
(i) if to the Corporation, to its office at 2 California Plaza, 350
South Grand Avenue, Los Angeles, California 90071 (Attention:
General Counsel)
or to the transfer agent for the Series B Preferred Stock;
(ii) if to a holder of the Series B Preferred Stock, to such holder at
the address of such holder as listed in the stock record books of
the Corporation (which may include the records of any transfer
agent for the Series B Preferred Stock); or
(iii) to such other address as the Corporation or such holder, as the
case may be, shall have designated by notice similarly given.
B. Reacquired Shares. Any shares of Series B Preferred Stock redeemed,
purchased or otherwise acquired by the Corporation, directly or indirectly, in
any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof (and shall not be deemed to be outstanding for any purpose)
and, if necessary to provide for the lawful redemption or purchase of such
shares, the capital represented by such shares shall be reduced in accordance
with the Delaware General Corporation Law. All such shares of Series B Preferred
Stock shall upon their cancellation and upon the filing of an appropriate
certificate with the Secretary of State of the State of Delaware, become
authorized but unissued shares of Preferred Stock, par value $0.001 per share,
of the Corporation and may be reissued as part of another series of Preferred
Stock, par value $0.001 per share, of the Corporation subject to the conditions
or restrictions on issuance set forth herein.
<PAGE>
C. Enforcement. Any registered holder of shares of Series B Preferred Stock
may proceed to protect and enforce its rights and the rights of such holders by
any available remedy by proceeding at law or in equity to protect and enforce
any such rights, whether for the specific enforcement of any provision in this
Certificate of Designations or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
D. Transfer Taxes. Except as otherwise agreed upon pursuant to the terms of
this Certificate of Designations, the Corporation shall pay any and all
documentary, stamp or similar issue or transfer taxes and other governmental
charges that may be imposed under the laws of the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
any issue or delivery of Common Stock on conversion of, or other securities or
property issued on account of, shares of Series B Preferred Stock pursuant
hereto or certificates representing such shares or securities. The Corporation
shall not, however, be required to pay any such tax or other charge that may be
imposed in connection with any transfer involved in the issue or transfer and
delivery of any certificate for Common Stock or other securities or property in
a name other than that in which the shares of Series B Preferred Stock so
exchanged, or on account of which such securities were issued, were registered
and no such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Corporation the amount of any such tax or
has established to the satisfaction of the Corporation that such tax has been
paid or is not payable.
E. Transfer Agent. The Corporation may appoint, and from time to time
discharge and change, a transfer agent for the Series B Preferred Stock. Upon
any such appointment or discharge of a transfer agent, the Corporation shall
send notice thereof by first-class mail, postage prepaid, to each holder of
record of shares of Series B Preferred Stock.
F. Record Dates. In the event that the Series B Preferred Stock shall be
registered under either the Securities Act of 1933, as amended, or the Exchange
Act, the Corporation shall establish appropriate record dates with respect to
payments and other actions to be made with respect to the Series B Preferred
Stock.
<PAGE>
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Corporation by its [ ] and attested by its Assistant Secretary, this ___
day of ____________ , 1999.
AAMES FINANCIAL CORPORATION
By:__________________________
Name:
Title:
[Corporate Seal]
ATTEST:
___________________________
<PAGE>
- --------------------------------------------------------------------------------
CERTIFICATE OF THE VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER SPECIAL RIGHTS, AND QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF
SERIES C CONVERTIBLE PREFERRED STOCK OF
AAMES FINANCIAL CORPORATION
- --------------------------------------------------------------------------------
AAMES FINANCIAL CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies that the following resolutions were adopted by the Board of Directors
of the Corporation (the "Board of Directors") pursuant to authority of the Board
of Directors as required by Section 151 of the Delaware General Corporation Law:
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors in accordance with the provisions of the Certificate of
Incorporation of the Corporation, as amended (the "Certificate of
Incorporation"), the Board of Directors hereby creates a series of the
Corporation's previously authorized preferred stock, par value $0.001 per share
(the "Preferred Stock"), and hereby states the designation and number thereof,
and fixes the voting powers, preferences and relative, participating, optional
and other special rights, and the qualifications, limitations and restrictions
thereof, as follows:
Series C Convertible Preferred Stock:
I. Designation and Amount
The designation of this series of shares shall be "Series C Convertible
Preferred Stock" (the "Series C Preferred Stock") par value $0.001 per share;
the initial stated value per share shall be $1,000.00 (the "Initial Stated
Value"); and the number of shares constituting such series shall be 100,000. The
number of shares of the Series C Preferred Stock may be decreased from time to
time by a resolution or resolutions of the Board of Directors; provided,
however, that such number shall not be decreased below the aggregate number of
shares of the Series C Preferred Stock then outstanding.
II. Rank
A. With respect to dividends, the Series C Preferred Stock shall rank (i)
senior to each other class or series of Preferred Stock, except for the Series B
Convertible Preferred Stock, par value $0.001 per share, of the Corporation (the
"Series B Preferred Stock"); (ii) on a parity with the Series B Preferred Stock;
and (iii) senior to the Corporation's Common Stock, par value $.001 per share
(the "Common Stock"), and, except as specified above, all other classes and
series of capital stock of the Corporation hereafter issued by the Corporation.
With respect to dividends, all equity securities of the Corporation to which the
Series C Preferred Stock ranks senior, including the Common Stock, are
collectively referred to herein as the "Junior Dividend
<PAGE>
Securities"; all equity securities of the Corporation with which the Series C
Preferred Stock ranks on a parity, including the Series B Preferred Stock, are
collectively referred to herein as the "Parity Dividend Securities"; and all
equity securities of the Corporation (other than convertible debt securities) to
which the Series C Preferred Stock ranks junior, with respect to dividends, are
collectively referred to herein as the "Senior Dividend Securities."
B. With respect to the distribution of assets upon liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the Series C
Preferred Stock shall rank (i) senior to each other class or series of Preferred
Stock, except for the Series B Preferred Stock; (ii) on a parity with the Series
B Preferred Stock; and (iii) senior to the Common Stock, and, except as
specified above, all other classes and series of capital stock of the
Corporation hereafter issued by the Corporation. With respect to the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, all equity securities of the
Corporation to which the Series C Preferred Stock ranks senior, including the
Common Stock, are collectively referred to herein as "Junior Liquidation
Securities"; all equity securities of the Corporation (other than convertible
debt securities) to which the Series C Preferred Stock ranks on parity,
including the Series B Preferred Stock, are collectively referred to herein as
"Parity Liquidation Securities"; and all equity securities of the Corporation to
which the Series C Preferred Stock ranks junior are collectively referred to
herein as "Senior Liquidation Securities."
C. The Series C Preferred Stock shall be subject to the creation of Junior
Dividend Securities and Junior Liquidation Securities (collectively, "Junior
Securities"), but no Parity Dividend Securities or Parity Liquidation Securities
(collectively, "Parity Securities") (other than the Series B Preferred Stock) or
Senior Dividend Securities or Senior Liquidation Securities (collectively,
"Senior Securities") shall be created except in accordance with the terms
hereof.
III. Dividends
A. Dividends. Subject to the terms of paragraph D below, shares of Series C
Preferred Stock shall accumulate dividends at a rate of 6.5% per annum (the
"Dividend Rate"), which dividends shall be paid quarterly in cash, in four equal
quarterly installments on the last day of March, June, September and December of
each year, or if any such date is not a Business Day, the Business Day next
preceding such day (each such date, regardless of whether any dividends have
been paid or declared and set aside for payment on such date, a "Dividend
Payment Date"), to holders of record (the "Registered Holders") as they appear
on the stock record books of the Corporation on the fifteenth day prior to the
relevant Dividend Payment Date; provided, however, that during the Accrual
Period (as defined in Article IX hereof) the Corporation shall have the option
to accrue such dividends, which dividends, to the extent so accrued, shall
compound quarterly. Prior to the consummation of the Recapitalization, dividends
shall accrue and accumulate on the Initial Stated Value of each share of Series
B Preferred Stock. Following the consummation of the Recapitalization, dividends
shall accrue and accumulate on the Post-Recapitalization Stated Value of each
share of Series B Preferred Stock. Dividends shall be paid only when, as and if
declared by the Board of Directors out of funds at the time legally available
for the payment of dividends. Dividends shall begin to accumulate on outstanding
shares of Series C Preferred Stock from the date of issuance and shall be deemed
to accumulate from day to day
<PAGE>
whether or not earned or declared until paid. Dividends shall accumulate on
the basis of a 360-day year consisting of twelve 30-day months (four 90-day
quarters) and the actual number of days elapsed in the period for which payable.
B. Accumulation. Dividends on the Series C Preferred Stock shall be
cumulative, and from and after (i) any Dividend Payment Date on which any
dividend that has accumulated or been deemed to have accumulated through such
date has not been paid in full (other than by reason of the election of the
Corporation to accrue dividends during the Accrual Period); or (ii) any payment
date set for a redemption on which such redemption payment has not been paid in
full, additional dividends shall accumulate in respect of the amount of such
unpaid dividends or unpaid redemption payment (the "Arrearage") at 125% of the
stated dividend rate (or such lesser rate as may be the maximum rate that is
then permitted by applicable law). Such additional dividends in respect of any
Arrearage shall be deemed to accumulate from day to day whether or not earned or
declared until the Arrearage is paid, shall be calculated as of such successive
Dividend Payment Date, and shall constitute an additional Arrearage from and
after any Dividend Payment Date to the extent not paid on such Dividend Payment
Date. References in any Article herein to dividends that have accumulated or
that have been deemed to have accumulated with respect to the Series C Preferred
Stock shall include the amount, if any, of any Arrearage together with any
dividends accumulated or deemed to have accumulated on such Arrearage pursuant
to the immediately preceding two sentences. Additional dividends in respect of
any Arrearage may be declared and paid at any time, in whole or in part, without
reference to any regular Dividend Payment Date, to Registered Holders as they
appear on the stock record books of the Corporation on such record date as may
be fixed by the Board of Directors (which record date shall be no less than 10
days prior to the corresponding payment date). Dividends in respect of any
Arrearage shall be paid in cash.
C. Method of Payment. Dividends paid on the shares of Series C Preferred
Stock in an amount less than the total amount of such dividends at the time
accumulated and payable on all outstanding shares of Series C Preferred Stock
shall be allocated pro rata on a share-by-share basis among all such shares then
outstanding. After the Second Anniversary Date, dividends that are declared and
paid in an amount less than the full amount of dividends accumulated on the
Series C Preferred Stock (and on any Arrearage) shall be applied first to the
earliest dividend which has not theretofore been paid. All cash payments of
dividends on the shares of Series C Preferred Stock shall be made in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
D. Special Dividend Rights.
1. In addition to the dividend rights set forth in paragraph A above, prior
to the consummation of the Recapitalization, the holders of shares of Series C
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for such purpose, cash
dividends in an amount per whole share (rounded to the nearest cent) equal to
the Formula Number then in effect times the aggregate per share amount of all
cash dividends declared or paid on the Common Stock. If, prior to the
consummation of the Recapitalization, the Corporation shall pay any dividend or
make any distribution on the Common Stock payable in assets, securities or other
forms of non-cash consideration, then, in each such
<PAGE>
case, the Corporation shall simultaneously pay or make on each whole
outstanding share of the Series C Preferred Stock a dividend or distribution in
like kind equal to the Formula Number then in effect times such dividend or
distribution on each share of the Common Stock. The dividends and distributions
on the Series C Preferred Stock pursuant to this paragraph D are hereinafter
referred to as "Participating Dividends." The Corporation shall declare each
Participating Dividend immediately prior to or at the same time it declares any
cash or non-cash dividend or distribution on the Common Stock in respect of
which a Participating Dividend is required to be paid. No cash or non-cash
dividend or distribution on the Common Stock in respect of which a Participating
Dividend is required shall be paid or set aside for payment on the Common Stock
unless a Participation Dividend in respect of such dividend shall be have been
paid. Nothing contained in this paragraph D shall obligate the Company to
declare or pay any dividend or other distribution on the Common Stock or (except
pursuant to paragraph A of this Article III or in connection with a dividend or
distribution on the Common Stock as provided in this paragraph D) the Series B
Preferred Stock.
2. If the Recapitalization is not consummated prior to June 30, 1999, the
Dividend Rate shall be deemed to be 15% per annum during the period commencing
on such date and ending on the date the Recapitalization is consummated.
IV. Liquidation Preference
A. Prior to the Recapitalization. In the event of a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
occurring prior to the consummation of the Recapitalization, the holders of
then-outstanding shares of Series C Preferred Stock shall be entitled to receive
out of the assets of the Corporation, whether such assets are capital or surplus
of any nature, an amount per share equal to the sum of (i) the dividends, if
any, accumulated or deemed to have accumulated thereon, to the date of final
distribution to such holders, whether or not such dividends are declared; and
(ii) the Initial Stated Value thereof, before any payment shall be made or any
assets distributed to the holders of any Junior Liquidation Securities (the
"Initial Preferred Distribution"). After the Initial Preferred Distribution has
been made, the holders of Series C Preferred Stock shall be entitled to share
pro rata with the holders of Common Stock in the distribution of any remaining
assets of the Corporation on the basis of each whole outstanding share of the
Series C Preferred Stock receiving an amount equal to the Formula Number then in
effect times such distribution on each share of the Common Stock. The
distributions on the Series C Preferred Stock pursuant to the immediately
preceding sentence of this paragraph A are hereinafter referred to as
"Participating Liquidation Distributions." No distribution on the Common Stock
in respect of which a Participating Liquidation Distribution is required shall
be paid or set aside for payment on the Common Stock unless a Participating
Liquidation Distribution in respect of such distribution is concurrently paid.
B. After the Recapitalization. Subsequent to the consummation of the
Recapitalization, the holders of the outstanding shares of Series C Preferred
Stock shall be entitled to receive out of the assets of the Corporation, whether
such assets are capital or surplus of any nature, an amount per share equal to
the sum of (i) the dividends, if any, accumulated or deemed to have accumulated
thereon to the date of final distribution to such holders, whether or
<PAGE>
not such dividends are declared; and (ii) the Post-Recapitalization Stated
Value thereof, before any payment shall be made or any assets distributed to the
holders of any Junior Liquidation Securities. After any such payment in full
after the consummation of the Recapitalization, the holders of Series C
Preferred Stock shall not, as such, be entitled to any further participation in
any distribution of assets of the Corporation.
C. Parity Securities. All the assets of the Corporation available for
distribution to stockholders after the liquidation preferences of any Senior
Liquidation Securities shall be distributed ratably (in proportion to the full
distributable amounts to which holders of Series C Preferred Stock and Parity
Liquidation Securities, if any, are respectively entitled upon such dissolution,
liquidation or winding up) among the holders of the then-outstanding shares of
Series C Preferred Stock and Parity Liquidation Securities, if any, when such
assets are not sufficient to pay in full the aggregate amounts payable thereon.
D. Merger Not a Liquidation. Neither a consolidation or merger of the
Corporation with or into any other Person or Persons, nor a sale, conveyance,
lease, exchange or transfer of all or part of the Corporation's assets for cash,
securities or other property to a Person or Persons shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of this
Article IV, but the holders of shares of Series C Preferred Stock shall
nevertheless be entitled from and after any such consolidation, merger or sale,
conveyance, lease, exchange or transfer of all or part of the Corporation's
assets to the rights provided by this Article IV following any such transaction.
Notice of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, stating the payment date or dates when, and the place or places
where, the amounts distributable to each holder of shares of Series C Preferred
Stock in such circumstances shall be payable, shall be given by first-class
mail, postage prepaid, mailed not less than 30 days prior to any payment date
stated therein, to holders of record as they appear on the stock record books of
the Corporation as of the date such notices are first mailed.
V. Redemption
A. Mandatory Redemption. If the Recapitalization has not been consummated
prior to June 30, 1999, then on the sixth anniversary of the Issue Date (the
"Mandatory Redemption Date"), the Corporation shall redeem all outstanding
shares of Series C Preferred Stock by paying the Redemption Price therefor in
cash out of funds legally available for such purpose.
B. Optional Redemption. Commencing on the earlier to occur of (x) the tenth
anniversary of the Issue Date and (y) the date on which fewer than 25% of the
shares of Series C Preferred Stock issued on the Issue Date remain outstanding,
and at all times thereafter, the Corporation may, at its option, redeem all (but
not less than all) outstanding shares of Series C Preferred Stock on a date
specified by the Corporation (the "Optional Redemption Date") by paying the
Redemption Price therefor in cash out funds legally available for such purpose.
C. Notice and Redemption Procedures. Notice of the redemption of shares of
Series C Preferred Stock pursuant to paragraph A or B of this Article V (a
"Notice of Redemption") shall be sent to the holders of record of the shares of
Series C Preferred Stock to
<PAGE>
be redeemed by first class mail, postage prepaid, at each such holder's
address as it appears on the stock record books of the Corporation not more than
120 nor fewer than 90 days prior to the Mandatory Redemption Date or Optional
Redemption Date, as applicable, which date shall be set forth in such notice
(the "Redemption Date"); provided that failure to give such Notice of Redemption
to any holder, or any defect in such Notice of Redemption to any holder shall
not affect the validity of the proceedings for the redemption of any shares of
Series C Preferred Stock held by any other holder. In order to facilitate the
redemption of shares of Series C Preferred Stock, the Board of Directors may fix
a record date for the determination of the holders of shares of Series C
Preferred Stock to be redeemed not more than 30 days prior to the date the
Notice of Redemption is mailed. On or after the Mandatory Redemption Date or
Optional Redemption Date, as applicable, each holder of the shares called for
redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the Redemption Price for such shares. From and
after the Mandatory Redemption Date or Optional Redemption Date, as applicable,
all dividends on shares of Series C Preferred Stock shall cease to accumulate
and all rights of the holders thereof as holders of Series C Preferred Stock
shall cease and terminate, except to the extent the Corporation shall default in
payment thereof on the Mandatory Redemption Date or Optional Redemption Date, as
applicable.
D. Deposit of Funds. The Corporation shall, on or prior to the Mandatory
Redemption Date or Optional Redemption Date, as applicable, pursuant to
paragraph C of this Article V, deposit with its transfer agent or other
redemption agent in the Borough of Manhattan, The City of New York having a
capital and surplus of at least $500,000,000 selected by the Board of Directors,
as a trust fund for the benefit of the holders of the shares of Series C
Preferred Stock to be redeemed, cash that is sufficient in amount to redeem the
shares to be redeemed in accordance with the Notice of Redemption, with
irrevocable instructions and authority to such transfer agent or other
redemption agent to pay to the respective holders of such shares, as evidenced
by a list of such holders certified by an officer of the Corporation, the
Redemption Price upon surrender of their respective share certificates. Such
deposit shall be deemed to constitute full payment of the Redemption Price for
such shares to the holders, and from and after the date of such deposit, all
rights of the holders of the shares of Series C Preferred Stock that are to be
redeemed as stockholders of the Corporation with respect to such shares, except
the right to receive the Redemption Price upon the surrender of their respective
certificates, shall cease and terminate. No dividends shall accumulate on any
shares of Series C Preferred Stock after the Mandatory Redemption Date or
Optional Redemption Date, as applicable, for such shares (unless the Corporation
shall fail to deposit cash sufficient to redeem all such shares). In case
holders of any shares of Series C Preferred Stock called for redemption shall
not, within two years after such deposit, claim the cash deposited for
redemption thereof, such transfer agent or other redemption agent shall, upon
demand, pay over to the Corporation the balance so deposited. Thereupon, such
transfer agent or other redemption agent shall be relieved of all responsibility
to the holders thereof and the sole right of such holders, with respect to
shares to be redeemed, shall be to receive the Redemption Price as general
creditors of the Corporation. Any interest accrued on any funds so deposited
shall belong to the Corporation, and shall be paid to it from time to time on
demand.
<PAGE>
VI. Restrictions on Dividends
So long as any shares of the Series C Preferred Stock are outstanding, the
Board of Directors shall not declare, and the Corporation shall not pay or set
apart for payment any dividend on any Junior Securities or make any payment on
account of, or set apart for payment money for a sinking or other similar fund
for, the repurchase, redemption or other retirement of, any Junior Securities or
Parity Securities or any warrants, rights or options exercisable for or
convertible into any Junior Securities or Parity Securities (other than the
repurchase, redemption or other retirement of debentures or other debt
securities that are convertible or exchangeable into any Junior Securities or
Parity Securities), or make any distribution in respect of the Junior
Securities, either directly or indirectly, and whether in cash, obligations or
shares of the Corporation or other property (other than distributions or
dividends in Junior Securities to the holders of Junior Securities), and shall
not permit any corporation or other entity directly or indirectly controlled by
the Corporation to purchase or redeem any Junior Securities or Parity Securities
or any warrants, rights, calls or options exercisable for or convertible into
any Junior Securities or Parity Securities (other than the repurchase,
redemption or other retirement of debentures or other debt securities that are
convertible or exchangeable into any Junior Securities or Parity Securities or
the repurchase, redemption or other retirement of Junior Securities or Parity
Securities in exchange for Junior Securities or Parity Securities) unless prior
to or concurrently with such declaration, payment, setting apart for payment,
repurchase, redemption or other retirement or distribution, as the case may be,
all accumulated and unpaid dividends on shares of the Series C Preferred Stock
not paid on the dates provided for in paragraph A of Article III hereof
(including Arrearages and accumulated dividends thereon) shall have been paid,
except that when dividends are not paid in full as aforesaid upon the shares of
Series C Preferred Stock, all dividends declared on the Series C Preferred Stock
and any series of Parity Dividend Securities shall be declared and paid pro rata
so that the amount of dividends so declared and paid on Series C Preferred Stock
and such series of Parity Dividend Securities shall in all cases bear to each
other the same ratio that accumulated dividends (including interest accrued on
or additional dividends accumulated in respect of such accumulated dividends) on
the shares of Series C Preferred Stock and such Parity Dividend Securities bear
to each other.
VII. Voting Rights
A. On or prior to the consummation of the Recapitalization, the holders of
Series C Preferred Stock shall be entitled to one thousand (1,000) votes per
share of Series C Preferred Stock at each meeting of stockholders of the
Corporation with respect to any and all matters presented to the stockholders of
the Corporation for their action and consideration, other than the election of
directors. After the consummation of the Recapitalization, the holders of Series
C Preferred Stock shall be entitled to the number of votes per share of Series C
Preferred Stock equal to the number of shares of Common Stock for which such
share of Series C Preferred Stock is then convertible pursuant to Article VIII
at each meeting of stockholders of the Corporation with respect to any and all
matters presented to the stockholders of the Corporation for their action and
consideration, other than the election of directors.
B. So long as any shares of the Series C Preferred Stock are outstanding,
(i) each share of Series C Preferred Stock shall entitle the holder thereof to
vote on all matters voted
<PAGE>
on by holders of Common Stock, other than the election of directors; and
(ii) the shares of Series C Preferred Stock shall vote together with shares of
Common Stock and shares of Series B Preferred Stock as a single class.
C. Without the written consent (if action by written consent is permitted)
or affirmative vote of the holders of a majority of the outstanding shares of
Series C Preferred Stock and Series B Preferred Stock, voting together as a
single class, the Corporation shall not (i) authorize, create or issue, or
increase the authorized amount of, (x) any Senior Securities or Parity
Securities or (y) any class or series of capital stock or any security
convertible into or exercisable for any class or series of capital stock,
redeemable mandatorily or redeemable at the option of the holder thereof at any
time on or prior to the Mandatory Redemption Date (whether or not only upon the
occurrence of a specified event) or (ii) enter into any Transaction (as defined
in paragraph H of Article VIII). Such vote or consent shall be taken in
accordance with the procedures specified in paragraph E below.
D. Without the written consent (if action by written consent is permitted)
or affirmative vote of the holders of at least a majority of the outstanding
shares of Series C Preferred Stock and Series B Preferred Stock, voting together
as a single class, the Corporation shall not (i) amend, alter or repeal any
provision of the Certificate of Incorporation or the Bylaws, if the amendment,
alteration or repeal alters or changes the powers, preferences or special rights
of the Series C Preferred Stock so as to affect them materially and adversely or
(ii) authorize or take any other action if such action alters or changes any of
the rights of the Series C Preferred Stock in any respect or otherwise would be
inconsistent with the provisions of this Certificate of Designations and the
holders of any class or series of the capital stock of the Corporation is
entitled to vote thereon. Such vote or consent shall be taken in accordance with
the procedures specified in paragraph E below.
E. The foregoing rights of holders of shares of Series C Preferred Stock to
take any actions as provided in this Article VII may be exercised at any annual
meeting of stockholders or at a special meeting of stockholders held for such
purpose as hereinafter provided or at any adjournment thereof, or by the written
consent, delivered to the Secretary of the Corporation, of the holders of the
minimum number of shares required to take such action, if action by written
consent of stockholders of the Corporation is then permitted.
The Chairman of the Board of the Corporation may call, and upon written
request of holders of record of 35% of the outstanding shares of Series C
Preferred Stock and Series B Preferred Stock, addressed to the Secretary of the
Corporation at the principal office of the Corporation shall call, a special
meeting of the holders of shares entitled to vote as provided herein. Such
meeting shall be held within 30 days after delivery of such request to the
Secretary, at the place and upon the notice provided by law and in the By-laws
of the Corporation for the holding of meetings of stockholders.
At each meeting of stockholders at which the holders of shares of Series C
Preferred Stock shall have the right to take any action, the presence in person
or by proxy of the holders of record of one-third of the total number of shares
of Series C Preferred Stock and Series
<PAGE>
B Preferred Stock then outstanding and entitled to vote on the matter shall
be necessary and sufficient to constitute a quorum. At any such meeting or at
any adjournment thereof:
(A) the absence of a quorum of the holders of shares of Series C
Preferred Stock shall not prevent the election of directors to be elected
by the holders of shares of Series B Preferred Stock or the taking of any
action as provided in this Article VII; and
(B) in the absence of a quorum of the holders of shares of Series C
Preferred Stock and Series B Preferred Stock, a majority of the holders of
such shares present in person or by proxy shall have the power to adjourn
the meeting as to the actions to be taken by the holders of shares of
Series C Preferred Stock and Series B Preferred Stock, from time to time
and place to place without notice other than announcement at the meeting
until a quorum shall be present.
For taking of any action as provided in this Article VII by the holders of
shares of Series C Preferred Stock and Series B Preferred Stock, each such
holder shall have one vote for each share of such stock standing in his name on
the transfer books of the Corporation as of any record dated fixed for such
purpose or, if no such date be fixed, at the close of business on the Business
Day next preceding the day on which notice is given, or if notice if waived, at
the close of business on the Business Day next preceding the day on which the
meeting is held.
F. The Corporation shall not enter into any agreement or issue any security
that prohibits, conflicts or is inconsistent with, or would be breached by, the
Corporation's performance of its obligations hereunder.
VIII. Conversion
The holders of the Series C Preferred Stock shall have conversion rights as
follows:
A. Each share of Series C Preferred Stock shall be convertible at the
direction of, and by notice to the Corporation from, (i) the holder
thereof or (ii) the holders of a majority of the outstanding shares of
Series C Preferred Stock, at any time, at the office of the
Corporation or any transfer agent for such Series, into one thousand
(1,000) fully paid and nonassessable shares of Common Stock subject
(x) to adjustment from time to time as provided below (as so adjusted,
the "conversion ratio") and (y) (prior to the consummation of the
Recapitalization) to limitations resulting from the available number
of shares of Common Stock which may be reserved for issuance upon such
conversion, provided, that any conversion pursuant to clause (ii)
above of less than all of the outstanding shares of Series C Preferred
Stock shall be on a pro rata basis amongst all holders of Series C
Preferred Stock. [Note: If the certificate of incorporation is amended
in connection with the Recapitalization, as contemplated by the
Preferred Stock Purchase Agreement, the number "1,000" in this
paragraph shall be "1"]
<PAGE>
B. If a holder of Series C Preferred Stock gives notice (an "Optional
Conversion Notice") of conversion under paragraph A above, such holder
shall surrender with such Optional Conversion Notice the duly endorsed
certificate or certificates for the Series C Preferred Stock being
converted, at the office of the Corporation or of any transfer agent
for such Series, and shall state therein the name or names in which
the certificate or certificates for shares of Common Stock are to be
issued. If the holders of a majority of the outstanding shares of
Series C Preferred Stock give notice of conversion under paragraph A
above, the Corporation shall notify all other record holders of Series
C Preferred Stock (a "Mandatory Conversion Notice"). Following receipt
of a Mandatory Conversion Notice, the holders of Series C Preferred
Stock shall surrender the certificate or certificates therefor duly
endorsed, at the office of the Corporation or of any transfer agent
for such Series, and shall state therein the name or names in which
the certificate or certificates for shares of Common Stock are to be
issued. The Corporation shall, as soon as practicable after the
surrender of a Series C Preferred Stock certificate or certificates
pursuant to an Optional Conversion Notice or Mandatory Conversion
Notice, issue and deliver at such office to such holder, or to the
nominee or nominees of such holder, a certificate or certificates for
the number of shares of Common Stock to which such holder shall be
entitled as aforesaid. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of such
Optional Conversion Notice or Mandatory Conversion Notice, as
applicable, and the person or persons entitled to receive the shares
of Common Stock issuable upon such conversion shall be treated for all
purposes as the recordholder or holders of such shares of Common Stock
as of such date. The issuance of certificates or shares of Common
Stock upon conversion of shares of Series C Preferred Stock shall be
made without charge for any issue, stamp or other similar tax in
respect of such issuance.
C. No fractional shares shall be issued upon conversion of any shares of
Series C Preferred Stock and the number of shares of Common Stock to
be issued shall be rounded down to the nearest whole share, and the
holder of Series C Preferred Stock shall be paid in cash for any
fractional share.
D. In case at any time or from time to time the Corporation shall pay any
dividend or make any other distribution to the holders of its Common
Stock or other class of securities, or shall offer for subscription
pro rata to the holders of its Common Stock or other class of
securities any additional shares of stock of any class or any other
right, or there shall be any capital reorganization or
reclassification of the Common Stock of the Corporation or
consolidation or merger of the Corporation with or into another
corporation, or any sale or conveyance to another corporation of the
property of the Corporation as an entirety or substantially as an
entirety, or there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, then, in any one or more
of said cases the Corporation shall give at least 20 days' prior
written notice (the time of mailing of such notice shall be deemed to
be the time of giving thereof) to the registered holders of the Series
C Preferred Stock at the addresses of each as shown on the books of
the Corporation
<PAGE>
maintained by the Transfer Agent thereof of the date on which (i) the
books of the Corporation shall close or a record shall be taken for
such stock dividend, distribution or subscription rights or (ii) such
reorganization, reclassification, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding up shall take place,
as the case may be, provided that in the case of any Transaction to
which paragraph H applies the Corporation shall give at least 30 days'
prior written notice as aforesaid. Such notice shall also specify the
date as of which the holders of the Common Stock of record shall
participate in said dividend, distribution or subscription rights or
shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale or conveyance or participate in such
dissolution, liquidation or winding up, as the case may be. Failure to
give such notice shall not invalidate any action so taken.
E. From and after the Recapitalization, the Corporation shall at all
times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of Series C Preferred Stock, such number of
its shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding shares of Series C Preferred
Stock, and if at any time the number of authorized but unissued shares
of Common Stock shall not be sufficient to effect the conversion of
all then outstanding shares of Series C Preferred Stock, then in
addition to such other remedies as shall be available to the holder of
Series C Preferred Stock, the Corporation will take such corporate
action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purposes.
F. Any notice required by the provisions of paragraph D to be given the
holders of shares of Series C Preferred Stock shall be deemed given if
sent by facsimile transmission, by telex, or if deposited in the
United States mail, postage prepaid, and addressed to each holder of
record at his, her or its address appearing on the books of the
Corporation.
G. The conversion ratio shall be subject to adjustment from time to time
as follows:
(i) In case the Corporation shall at any time or from time to
time after the Issue Date (A) pay a dividend or make a distribution,
on the outstanding shares of Common Stock in shares of Common Stock,
(B) subdivide the outstanding shares of Common Stock into a larger
number of shares of Common Stock, (C) combine the outstanding shares
of Common Stock into a smaller number of shares or (D) issue by
reclassification of the shares of Common Stock any shares of capital
stock of the Corporation, then, and in each such case, the conversion
ratio in effect immediately prior to such event or the record date
therefor, whichever is earlier, shall be adjusted so that the holder
of any shares of Series C Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common
Stock or other securities of the Corporation
<PAGE>
which such holder would have owned or have been entitled to
receive after the happening of any of the events described above, had
such shares of Series C Preferred Stock been surrendered for
conversion immediately prior to the happening of such event or the
record date therefor, whichever is earlier. An adjustment made
pursuant to this clause (i) shall become effective (x) in the case of
any such dividend or distribution, immediately after the close of
business on the record date for the determination of holders of shares
of Common Stock entitled to receive such dividend or distribution, or
(y) in the case of any such subdivision, reclassification or
combination, at the close of business on the day upon which such
corporate action becomes effective.
(ii) In the case the Corporation shall, after the Issue Date,
issue shares of Common Stock at a price per share, or securities
convertible into or exchangeable for shares of Common Stock
("Convertible Securities") having a "Conversion Price" (as defined
below) less than the Current Market Price (for a period of 15
consecutive trading days prior to such date), then, and in each such
case, the conversion ratio shall be adjusted so that the holder of
each share of Series C Preferred Stock shall be entitled to receive,
upon the conversion thereof, the number of shares of Common Stock
determined by multiplying (A) the applicable conversion ratio on the
day immediately prior to such date by (B) a fraction, the numerator of
which shall be the sum of (1) the number of shares of Common Stock
outstanding on the date on which such shares or Convertible Securities
are issued and (2) the number of additional shares of Common Stock
issued, or into which the Convertible Securities may convert, and the
denominator of which shall be the sum of (x) the number of shares of
Common Stock outstanding on such date and (y) the number of shares of
Common Stock which the aggregate consideration receivable by the
Corporation for the total number of shares of Common Stock so issued,
or the number of shares of Common Stock which the aggregate of the
Conversion Price of such Convertible Securities so issued, would
purchase at such Current Market price on such date. An adjustment made
pursuant to this clause (ii) shall be made on the next Business Day
following the date on which any such issuance is made and shall be
effective retroactively immediately after the close of business on
such date. For purposes of this clause (ii), the aggregate
consideration receivable by the Corporation in connection with the
issuance of any securities shall be deemed to be the sum of the
aggregate offering price to the public (before deduction of
underwriting discounts or commissions and expenses payable to third
parties), and the "Conversion Price" of any Convertible Securities is
the total amount received or receivable by the Corporation as
consideration for the issue or sale of such Convertible Securities
(before deduction of underwriting discounts or commissions and
expenses payable to third parties) plus the minimum aggregate amount
of additional consideration, if any, payable to the Corporation upon
the conversion, exchange or exercise of any such Convertible
Securities. Neither (A) the issuance of any shares of Common Stock
(whether treasury shares or newly issued shares) pursuant to a
dividend or distribution on, or subdivision, combination or
reclassification of, the outstanding
<PAGE>
shares of Common Stock requiring an adjustment in the conversion
ratio pursuant to clause (i) of this paragraph G, or pursuant to any
employee benefit plan or program of the Corporation or pursuant to any
option, warrant, right, or Convertible Security outstanding as of the
date hereof (including, but not limited to, the Rights, the Series B
Preferred Stock, the Series C Preferred Stock and the Warrants) nor
(B) the issuance of shares of Common Stock pursuant thereto shall be
deemed to constitute an issuance of Common Stock or Convertible
Securities by the Corporation to which this clause (ii) applies. Upon
expiration of any Convertible Securities which shall not have been
exercised or converted and for which an adjustment shall have been
made pursuant to this clause (ii), the Conversion Price computed upon
the original issue thereof shall upon such expiration be recomputed as
if the only additional shares of Common Stock issued were such shares
of Common Stock (if any) actually issued upon exercise of such
Convertible Securities and the consideration received therefor was the
consideration actually received by the Corporation for the issue of
such Convertible Securities (whether or not exercised or converted)
plus the consideration actually received by the Corporation upon such
exercise of conversion.
(iii) In case the Corporation shall at any time or from time to
time after the Issue Date declare, order, pay or make a dividend or
other distribution (including, without limitation, any distribution of
stock or other securities or property or rights or warrants to
subscribe for securities of the Corporation or any of its Subsidiaries
by way of dividend or spin-off), on its Common Stock, other than (A)
regular quarterly dividends payable in cash in an aggregate amount not
to exceed 15% of net income from continuing operations before
extraordinary items of the Corporation, determined in accordance with
generally accepted accounting principles, during the period (treated
as one accounting period) commencing on July 1, 1998, and ending on
the date such dividend is paid or (B) dividends or distributions of
shares of Common Stock which are referred to in clause (i) of this
paragraph G, then, and in each such case, the conversion ratio shall
be adjusted so that the holder of each share of Series C Preferred
Stock shall be entitled to receive, upon the conversion thereof, the
number of shares of Common Stock determined by multiplying (1) the
applicable conversion ratio on the day immediately prior to the record
date fixed for the determination of stockholders entitled to receive
such dividend or distribution by (2) a fraction, the numerator of
which shall be the then Current Market Price per share of Common Stock
for the period of 20 Trading Days preceding such record date, and the
denominator of which shall be such Current Market Price per share of
Common Stock for the period of 20 Trading Days preceding such record
date less the Fair Market Value (as defined in Article IX) per share
of Common Stock (as determined in good faith by the Board of Directors
of the Corporation, a certified resolution with respect to which shall
be mailed to each holder of shares of Series C Preferred Stock) of
such dividend or distribution; provided, however, that in the event of
a distribution of shares of capital stock of a Subsidiary of the
Corporation (a "Spin-Off") made to
<PAGE>
holders of shares of Common Stock, the numerator of such fraction
shall be the sum of the Current Market Price per share of Common Stock
for the period of 20 Trading Days preceding the 35th Trading Day after
the effective date of such Spin-Off and the Current Market Price of
the number of shares (or the fraction of a share) of capital stock of
the Subsidiary which is distributed in such Spin-Off in respect of one
share of Common Stock for the period of 20 Trading Days preceding such
35th Trading Day and the denominator of which shall be the current
market price per share of the Common Stock for the period of 20
Trading Days proceeding such 35th Trading Day. An adjustment made
pursuant to this clause (iii) shall be made upon the opening of
business on the next Business Day following the date on which any such
dividend or distribution is made and shall be effective retroactively
immediately after the close of business on the record date fixed for
the determination of stockholders entitled to receive such dividend or
distribution; provided, however, if the proviso to the preceding
sentence applies, then such adjustment shall be made and be effective
as of such 35th Trading Day after the effective date of such Spin-Off.
(iv) For purposes of this paragraph G, the number of shares of
Common Stock at any time outstanding shall not include any shares of
Common Stock then owned or held by or for the account of the
Corporation.
(v) The term "dividend", as used in this paragraph G shall mean a
dividend or other distribution upon stock of the Corporation except
pursuant to the Rights Agreement (as defined in Article IX).
Notwithstanding anything in this Article VIII to the contrary, the
conversion ratio shall not be adjusted as a result of any dividend,
distribution or issuance of securities of the Corporation pursuant to
the Rights Agreement.
(vi) Anything in this paragraph G to the contrary
notwithstanding, the Corporation shall not be required to give effect
to any adjustment in the conversion ratio unless and until the net
effect of one or more adjustments (each of which shall be carried
forward), determined as above provided, shall have resulted in a
change of the conversion ratio by at least one-hundredth of one share
of Common Stock, and when the cumulative net effect of more than one
adjustment so determined shall be to change the conversion ratio by at
least one-hundredth of one share of Common Stock, such change in
conversion ratio shall thereupon be given effect.
(vii) The certificate of any firm of independent public
accountants of recognized standing selected by the Board of Directors
of the Corporation (which may be the firm of independent public
accountants regularly employed by the Corporation) shall be
presumptively correct for any computation made under this paragraph G.
(viii) If the Corporation shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a
dividend or other distribution,
<PAGE>
and shall thereafter and before the distribution to stockholders
thereof legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the number of shares of
Common Stock issuable upon exercise of the right of conversion granted
by this paragraph G or in the conversion ratio then in effect shall be
required by reason of the taking of such record.
(ix) There shall be no adjustment of the conversion ratio in case
of the issuance of any stock of the Corporation in a merger,
reorganization, acquisition or other similar transaction except as set
forth in paragraph G(i), G(ii) and H of this Article VIII.
H. In case of any reorganization or reclassification of outstanding
shares of Common Stock (other than a reclassification covered by
paragraph G(i) of this Article VIII), or in case of any consolidation
or merger of the Corporation with or into another corporation, or in
the case of any sale or conveyance to another corporation of the
property of the Corporation as an entirety or substantially as an
entirety (each of the foregoing being referred to as a "Transaction"),
each share of Series C Preferred Stock then outstanding shall
thereafter be convertible into, in lieu of the Common Stock issuable
upon such conversion prior to consummation of such Transaction, the
kind and amount of shares of stock and other securities and property
receivable (including cash) upon the consummation of such Transaction
by a holder of that number of shares of Common Stock into which one
share of Series C Preferred Stock was convertible immediately prior to
such Transaction (including, on a pro rata basis, the cash, securities
or property received by holders of Common Stock in any tender or
exchange offer that is a step in such Transaction). In case securities
or property other than Common Stock shall be issuable or deliverable
upon conversion as aforesaid, then all reference in this paragraph H
shall be deemed to apply, so far as appropriate and as nearly as may
be, to such other securities or property.
I. Upon any adjustment of the conversion ratio then in effect and any
increase or decrease in the number of shares of Common Stock issuable
upon the operation of the conversion set forth in Article VIII, then,
and in each such case, the Corporation shall promptly deliver to the
registered holders of the Series C Preferred and Common Stock, a
certificate signed by the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Corporation setting forth in reasonable detail the
event requiring the adjustment and the method by which such adjustment
was calculated and specifying the conversion ratio then in effect
following such adjustment and the increased or decreased number of
shares issuable upon the conversion set forth in this Article VIII.
<PAGE>
IX. Additional Definitions
For the purposes of this Certificate of Designations of Series C Preferred
Stock, the following terms shall have the meanings indicated:
"Accrual Period" means the end of the first quarterly period following the
Second Anniversary Date.
"Beneficially Own" with respect to any securities means having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act as in effect on the date hereof, except that a Person shall be
deemed to Beneficially Own all such securities that such Person has the right to
acquire whether such right is exercisable immediately or after the passage of
time). The terms "Beneficial Ownership" and "Beneficial Owner" have correlative
meanings.
"Business Day" means any day, other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Bylaws" means the Bylaws of the Corporation, as amended.
"Current Market Price", when used with reference to shares of Common Stock
or other securities on any date, shall mean the closing price per share of
Common Stock or such other securities on such date and, when used with reference
to shares of Common Stock or other securities for any period shall mean the
average of the daily closing prices per share of Common Stock or such other
securities for such period. The closing price for each day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock or such other securities are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock or such
other securities are listed or admitted to trading or, if the Common Stock is
not listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. National Market System or such other
securities are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Common Stock or such other securities selected by the Board of Directors
of the Corporation. If the Common Stock or such other securities are not
publicly held or so listed or publicly traded, "Current Market Price" shall mean
the Fair Market Value per share of Common Stock or of such other securities as
determined in good faith by the Board of Directors of the Corporation based on
an opinion of an independent investment banking firm with an established
national reputation as a valuer of securities, which opinion may be based on
such assumption as such firm shall deem to be necessary and appropriate.
<PAGE>
"Equity Securities" of any Person means any and all common stock, preferred
stock and any other class of capital stock of, and any partnership or limited
liability company interests of such Person or any other similar interests of any
Person that is not a corporation, partnership or limited liability company.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, from time to time.
"Fair Market Value" shall mean the amount which a willing buyer would pay a
willing seller in an arm's-length transaction.
"Formula Number" shall mean one thousand (1,000) prior to consummation of
the Recapitalization; provided, however, that if at any time prior to the
consummation of the Recapitalization, the Corporation shall (i) declare or pay
any dividend or make any distribution on the Common Stock, payable in shares of
Common Stock; (ii) subdivide (by a stock split or otherwise) the outstanding
shares of Common Stock into a larger number of shares of Common Stock; or (iii)
combine (by a reverse stock split or otherwise) the outstanding shares of Common
Stock into a smaller number of shares of Common Stock, then in each such case
the Formula Number in effect immediately prior to such event shall be adjusted
to a number determined by multiplying the Formula Number then in effect by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event (and rounding the result to the nearest whole number); and provided
further, that, if prior to the consummation of the Recapitalization the
Corporation shall issue any shares of its capital stock in a merger,
reclassification, or change of the outstanding shares of Common Stock, then in
each such event the Formula Number shall be appropriately adjusted to reflect
such merger, reclassification, or change so that each share of Series C
Preferred Stock continues to be the economic equivalent of a Formula Number of
shares of Common Stock immediately prior to such merger, reclassification, or
change.
"Group" has the meaning set forth in Rule 13d-5 under the Exchange Act.
"Issue Date" shall mean the first date on which shares of Series C
Preferred Stock are issued.
"Person" means any individual, corporation, company, association,
partnership, joint venture, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Post-Recapitalization Stated Value" shall be equal to $1.00.
"Recapitalization" means the amendment of the Corporation's Certificate of
Incorporation to increase the authorized shares of Common Stock from 50,000,000
to [250,000,000], and the authorized shares of Preferred Stock from 1,000,000 to
[125,000,000], and the subsequent one thousand-for-one split of Series C
Preferred Stock and Series B Preferred Stock. [Increased number of authorized
shares is subject to final determination]
<PAGE>
"Redemption Price" of a share of Series C Preferred Stock shall mean the
sum of (a) the dividends, if any, accumulated or deemed to have accumulated
thereon to the Mandatory Redemption Date or Optional Redemption Date, as
applicable, whether or not such dividends are declared plus (b) either (i) the
Initial Stated Value thereof (if the Recapitalization has not been consummated
prior to June 30, 1999) or (ii) the Post-Recapitalization Stated Value thereof
(if the Recapitalization has been consummated prior to June 30, 1999), in each
case subject to adjustment for splits, reclassifications, recombinations or
similar events.
"Rights" shall mean any rights to purchase securities of the Corporation
issued pursuant to any Rights Agreement.
"Rights Agreement" shall mean the Rights Agreement, dated as of June 21,
1996, between the Company and Wells Fargo Bank as rights agent, and all
amendments, supplements and replacements thereof.
"Second Anniversary Date" means the second anniversary of the Issue Date.
"Subsidiary" means, as to any Person, any other Person of which more than
50% of the shares of the Voting Securities or other voting interests are owned
or controlled, or the ability to select or elect 50% or more of the directors or
similar managers is held, directly or indirectly, by such first Person and one
or more of its Subsidiaries.
"Trading Day" means a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock is not listed or admitted to
trading on any national securities exchange a Business Day.
"Voting Securities" means, (i) with respect to the Company, the Equity
Securities of the Company entitled to vote generally for the election of
directors of the Company, and (ii) with respect to any other Person, any
securities of or interests in such Person entitled to vote generally for the
election of directors or any similar managing person of such Person.
X. Miscellaneous
A. Notices. Any notice referred to herein shall be in writing and, unless
first-class mail shall be specifically permitted for such notices under the
terms hereof, shall be deemed to have been given upon personal delivery thereof,
upon transmittal of such notice by telecopy (with confirmation of receipt by
telecopy or telex) or five days after transmittal by registered or certified
mail, postage prepaid, addressed as follows:
(i) if to the Corporation, to its office at 2 California Plaza,
350 South Grand Avenue, Los Angeles, California 90071
(Attention: General Counsel)
or to the transfer agent for the Series C Preferred Stock;
<PAGE>
(ii) if to a holder of the Series C Preferred Stock, to such
holder at the address of such holder as listed in the stock
record books of the Corporation (which may include the
records of any transfer agent for the Series C Preferred
Stock); or
(iii) to such other address as the Corporation or such holder, as
the case may be, shall have designated by notice similarly
given.
B. Reacquired Shares. Any shares of Series C Preferred Stock redeemed,
purchased or otherwise acquired by the Corporation, directly or indirectly, in
any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof (and shall not be deemed to be outstanding for any purpose)
and, if necessary to provide for the lawful redemption or purchase of such
shares, the capital represented by such shares shall be reduced in accordance
with the Delaware General Corporation Law. All such shares of Series C Preferred
Stock shall upon their cancellation and upon the filing of an appropriate
certificate with the Secretary of State of the State of Delaware, become
authorized but unissued shares of Preferred Stock, par value $0.001 per share,
of the Corporation and may be reissued as part of another series of Preferred
Stock, par value $0.001 per share, of the Corporation subject to the conditions
or restrictions on issuance set forth herein.
C. Enforcement. Any registered holder of shares of Series C Preferred Stock
may proceed to protect and enforce its rights and the rights of such holders by
any available remedy by proceeding at law or in equity to protect and enforce
any such rights, whether for the specific enforcement of any provision in this
Certificate of Designations or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
D. Transfer Taxes. Except as otherwise agreed upon pursuant to the terms of
this Certificate of Designations, the Corporation shall pay any and all
documentary, stamp or similar issue or transfer taxes and other governmental
charges that may be imposed under the laws of the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
any issue or delivery of Common Stock on conversion of, or other securities or
property issued on account of, shares of Series C Preferred Stock pursuant
hereto or certificates representing such shares or securities. The Corporation
shall not, however, be required to pay any such tax or other charge that may be
imposed in connection with any transfer involved in the issue or transfer and
delivery of any certificate for Common Stock or other securities or property in
a name other than that in which the shares of Series C Preferred Stock so
exchanged, or on account of which such securities were issued, were registered
and no such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Corporation the amount of any such tax or
has established to the satisfaction of the Corporation that such tax has been
paid or is not payable.
E. Transfer Agent. The Corporation may appoint, and from time to time
discharge and change, a transfer agent for the Series C Preferred Stock. Upon
any such appointment or discharge of a transfer agent, the Corporation shall
send notice thereof by first-class mail, postage prepaid, to each holder of
record of shares of Series C Preferred Stock.
<PAGE>
F. Record Dates. In the event that the Series C Preferred Stock shall be
registered under either the Securities Act of 1933, as amended, or the Exchange
Act, the Corporation shall establish appropriate record dates with respect to
payments and other actions to be made with respect to the Series C Preferred
Stock.
<PAGE>
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Corporation by its [ ] and attested by its Assistant Secretary, this ___
day of ____________ , 1999.
AAMES FINANCIAL CORPORATION
By:__________________________
Name:
Title:
[Corporate Seal]
ATTEST:
_________________________
<PAGE>
Exhibit C
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND UNDER ANY SUCH
APPLICABLE STATE LAWS, OR IN VIOLATION OF THE PROVISIONS OF THIS WARRANT.
FORM OF WARRANT
To Purchase Common Stock of
AAMES FINANCIAL CORPORATION
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS.........................................................1
ARTICLE 2. EXERCISE OF WARRANT.................................................4
Section 2.1. Manner of Exercise.......................................4
Section 2.2. Payment of Taxes.........................................5
Section 2.3. Fractional Shares........................................6
ARTICLE 3. TRANSFER, DIVISION AND COMBINATION..................................6
Section 3.1. Transfer.................................................6
Section 3.2. Division and Combination.................................6
Section 3.3. Expenses.................................................7
Section 3.4. Maintenance of Books.....................................7
ARTICLE 4. ADJUSTMENTS.........................................................7
Section 4.1. Stock Dividends, Subdivisions, Combinations
and Reclassifications....................................7
Section 4.2. Issuance of Additional Shares of Common Stock
or Convertible Securities.................................8
Section 4.3. Certain Other Distributions...............................9
Section 4.4. Other Provisions Applicable to Adjustments
Under This Section.......................................10
Section 4.5. Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets...................12
Section 4.6. Notices..................................................12
Section 4.7. Certificates.............................................13
ARTICLE 5. NO IMPAIRMENT......................................................13
ARTICLE 6. RESERVATION AND AUTHORIZATION OF COMMON STOCK;
REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL
AUTHORITY...................................................14
ARTICLE 7. STOCK AND WARRANT TRANSFER BOOKS...................................14
ARTICLE 8. RESTRICTIONS ON TRANSFERABILITY....................................14
Section 8.1. Restrictive Legend......................................14
Section 8.2. Transfers...............................................15
Section 8.3. Termination of Restrictions.............................16
ARTICLE 9. SUPPLYING INFORMATION..............................................16
ARTICLE 10. LOSS OR MUTILATION................................................16
ARTICLE 11. OFFICE OF THE COMPANY.............................................17
ARTICLE 12. REGISTRATION RIGHTS...............................................17
ARTICLE 13. LIMITATION OF LIABILITY...........................................17
i
<PAGE>
ARTICLE 14. REPRESENTATION OF HOLDER.........................................17
ARTICLE 15. MISCELLANEOUS....................................................17
Section 15.1. Nonwaiver and Expenses................................17
Section 15.2. No Rights As Stockholder..............................18
Section 15.3. Notice Generally......................................18
Section 15.4. Successors and Assigns................................18
Section 15.5. Amendment.............................................19
Section 15.6. Severability..........................................19
Section 15.7. Headings..............................................19
Section 15.8. Governing Law.........................................19
Section 15.9. Mutual Waiver of Jury Trial...........................19
ii
<PAGE>
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND UNDER ANY SUCH
APPLICABLE STATE LAWS, OR IN VIOLATION OF THE PROVISIONS OF THIS WARRANT.
WARRANT
To Purchase 1,250,000 Shares of Common Stock of
AAMES FINANCIAL CORPORATION
THIS IS TO CERTIFY THAT Capital Z Management, Inc., or its
registered assigns, is entitled, at any time prior to December 31, 2004 (the
"Expiration Date"), to purchase from Aames Financial Corporation, a Delaware
corporation (the "Company"), 1,250,000 shares of common stock, par value $0.001
per share, of the Company (the "Common Stock"), subject to adjustment as
provided herein, in whole or in part, including fractional parts, at a purchase
price of $1.00 per share (the "Exercise Price"), subject to adjustment as set
forth herein, all on the terms and conditions and pursuant to the provisions
hereinafter set forth. Capitalized terms not otherwise defined herein are used
as defined in the Preferred Stock Purchase Agreement.
ARTICLE 1.
DEFINITIONS
-----------
As used in this Warrant, the following terms have the respective
meanings set forth below:
"Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company after the Issue Date, other than Warrant
Stock.
"Business Day" shall mean any day that is not a Saturday or
Sunday or a day on which banks are required or permitted to be closed in the
State of New York.
"Capital Z" shall have the meaning set forth in the first
paragraph hereof.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall have the meaning set forth in the first
paragraph hereof.
"Company" shall have the meaning set forth in the first paragraph
hereof.
<PAGE>
"Conversion Price" shall have the meaning set forth in Section
4.2 hereof.
"Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities which are convertible into or exchangeable,
with or without payment of additional consideration in cash or property, for
Additional Shares of Common Stock, either immediately or upon the occurrence of
a specified date or a specified event, other than the Senior Preferred Stock and
the Contingent Warrant issued under the Preferred Stock Purchase Agreement.
"Current Market Price" shall mean, when used with reference to
shares of Common Stock or other securities on any date, the closing price per
share of Common Stock or such other securities on such date and, when used with
reference to shares of Common Stock or other securities for any period shall
mean the average of the daily closing prices per share of Common Stock or such
other securities for such period. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock or such other securities are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock or such
other securities are listed or admitted to trading or, if the Common Stock is
not listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. National Market System or such other
securities are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Common Stock or such other securities selected by the Board of Directors
of the Corporation. If the Common Stock or such other securities are not
publicly held or so listed or publicly traded, "Current Market Price" shall mean
the Fair Market Value per share of Common Stock or of such other securities as
determined in good faith by the Board of Directors of the Corporation based on
an opinion of an independent investment banking firm with an established
national reputation as a valuer of securities, which opinion may be based on
such assumption as such firm shall deem to be necessary and appropriate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
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<PAGE>
"Exercise Price" shall have the meaning set forth in the first
paragraph hereof.
"Expiration Date" shall have the meaning set forth in the first
paragraph hereof.
"Fair Market Value" shall mean the amount which a willing buyer
would pay a willing seller in an arm's-length transaction.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as from time to time in effect.
"holder" shall mean, as the context requires, the Person in whose
name this Warrant is registered on the books of the Company maintained for such
purpose and/or the Person holding any Warrant Stock.
"Issue Date" shall mean the date on which this Warrant is issued.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, corporation or other entity and shall include
any successor (by merger or otherwise) of such entity.
"Preferred Stock Purchase Agreement" shall mean the Preferred
Stock Purchase Agreement, dated as of December 23, between the Company and
Capital Z.
"Registration Rights Agreement" shall mean the Registration
Rights Agreement, dated as of the date hereof, between the Company and Capital
Z.
"Restricted Common Stock" shall mean shares of Common Stock which
are, or which upon their issuance on the exercise of this Warrant would be,
evidenced by a certificate bearing the restrictive legend set forth in Section
8.1(a).
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder.
"Series B Preferred Stock" shall mean the Series B Convertible
Preferred Stock, par value $0.001 per share, to be issued pursuant to the
Preferred Stock Purchase Agreement.
"Series C Preferred Stock" shall mean the Series C Convertible
Preferred Stock, par value $0.001 per share, to be issued pursuant to the
Preferred Stock Purchase Agreement.
"Subsidiary" shall mean any corporation of which an aggregate of
more than 50% of the outstanding stock having
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<PAGE>
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether, at the time, stock of any other class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time, directly or indirectly, owned
legally or beneficially by the Company and/or one or more Subsidiaries of the
Company.
"Trading Day" means a day on which the principal national
securities exchange on which the Common Stock is listed or admitted to trading
is open for the transaction of business or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, a Business Day.
"Transaction" shall have the meaning set forth in Section 4.5
hereof.
"transfer" shall mean any transfer, sale, encumbrance,
hypothecation or other disposition of this Warrant or any Warrant Stock or of
any interest in either thereof.
"Transfer Notice" shall have the meaning set forth in Section
8.2.
"Warrant Price" shall mean an amount equal to (i) the number of
shares of Common Stock being purchased upon exercise of this Warrant pursuant to
Section 2.1, multiplied by (ii) the Exercise Price as of the date of such
exercise.
"Warrant Stock" shall mean the shares of Common Stock purchased
by the holder of this Warrant upon the exercise thereof.
ARTICLE 2.
EXERCISE OF WARRANT
-------------------
Section 2.1. Manner of Exercise. From and after the date hereof
and until 5:00 P.M., New York time, on the Expiration Date, the holder may
exercise this Warrant for all or any part of the number of shares of Common
Stock purchasable hereunder.
In order to exercise this Warrant, in whole or in part, the
holder shall deliver to the Company at its office at 2 California Plaza, 350
South Grand Avenue, Los Angeles, California 90071, or at the office or agency
designated by the Company pursuant to Section 11, (i) a written notice of the
holder's election to exercise this Warrant, which notice shall specify the
number of shares of Common Stock to be purchased, (ii) payment of the Warrant
Price in the manner provided below, and (iii) this Warrant. Such notice shall be
substantially in the form of the subscription form appearing at the end of this
Warrant as Exhibit A, duly executed by or on behalf of the holder. Upon receipt
thereof, the Company shall, as promptly as practicable, and in any event within
five (5) Business Days thereafter, execute or
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<PAGE>
cause to be executed and deliver or cause to be delivered to the holder a
certificate or certificates representing the aggregate number of full shares of
Common Stock issuable upon such exercise, together with cash in lieu of any
fraction of a share, as hereinafter provided. The stock certificate or
certificates so delivered shall be, to the extent possible, in such denomination
or denominations as such holder shall request in the notice and shall be
registered in the name of the holder or, subject to Section 8, such other name
as shall be designated in the notice. This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have been
issued, and the holder or any other Person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the date the notice, together with the cash, check or checks
and/or securities, if any, and this Warrant, are received by the Company as
described above and all taxes required to be paid by the holder, if any,
pursuant to Section 2.2 prior to the issuance of such shares have been paid. If
this Warrant shall have been exercised in part, the Company shall, at the time
of delivery of the certificate or certificates representing Warrant Stock,
deliver to the holder a new Warrant evidencing the rights of the holder to
purchase the unpurchased shares of Common Stock called for by this Warrant,
which new Warrant shall in all other respects be identical with this Warrant,
or, at the request of the holder, appropriate notation may be made on this
Warrant and the same returned to the holder.
Payment of the Warrant Price shall be made at the option of the
holder by cash, wire transfer to an account in a bank located in the United
States designated for such purpose by the Company, or certified or official bank
check, or by transfer to the Company of shares of Series B Preferred Stock or
Series C Preferred Stock, or any combination thereof. In the event of the
application shares of Series B Preferred Stock or Series C Preferred Stock to
the payment of the Warrant Price, the amount to be credited to the payment of
the Warrant Price shall be the Initial Stated Value per share, in the case of
any such application prior to the consummation of the Recapitalization, or the
Post-Recapitalization Stated Value per share, in the case of any such
application after the consummation of the Recapitalization, in each case, plus
an amount per share equal to all accrued and unpaid dividends thereon, whether
or not declared, to the date of such exercise, provided that no such credit
shall be made with respect to any such dividends if the holder of such shares
held such shares on the record date therefor.
Section 2.2. Payment of Taxes. The Company shall pay all expenses
in connection with, and all taxes and other governmental charges that may be
imposed with respect to, the issue or delivery of the Warrant Shares, unless
such tax or charge is imposed by law upon the holder, in which case such taxes
or charges shall be paid by the holder. The Company shall
- 5 -
<PAGE>
not be required, however, to pay any tax or other charge imposed in connection
with any transfer involved in the issue of any certificate for shares of Common
Stock issuable upon exercise of this Warrant in any name other than that of the
holder, and in such case the Company shall not be required to issue or deliver
any stock certificate until such tax or other charge has been paid or it has
been established to the satisfaction of the Company that no such tax or other
charge is due.
Section 2.3. Fractional Shares. The Company shall not be required
to issue a fractional share of Common Stock upon exercise of this Warrant. As to
any fraction of a share which the holder of this Warrant would otherwise be
entitled to purchase upon such exercise, the Company shall pay a cash adjustment
in respect of such final fraction in an amount equal to the same fraction of the
Current Market Price per share of Common Stock on the date of exercise.
ARTICLE 3.
TRANSFER, DIVISION AND COMBINATION
----------------------------------
Section 3.1. Transfer. Subject to compliance with Section 8,
transfer of this Warrant and all rights hereunder, in whole or in part, shall be
registered on the books of the Company to be maintained for such purpose, upon
surrender of this Warrant at the principal office of the Company referred to in
Section 2.1 or the office or agency designated by the Company pursuant to
Section 11, together with a written assignment of this Warrant substantially in
the form of Exhibit B hereto duly executed by the holder or its agent or
attorney and funds sufficient to pay any transfer taxes payable upon the making
of such transfer. Upon such surrender and, if required, such payment, the
Company shall, subject to Section 8, execute and deliver a new Warrant or
Warrants in the name(s) of the assignee or assignees and in the denomination(s)
specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be canceled. A Warrant, if properly assigned in
compliance with Section 8, may be exercised by a new holder for the purchase of
shares of Common Stock without having a new Warrant issued.
Section 3.2. Division and Combination. Subject to Section 8, this
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the holder or its agent or attorney. Subject to compliance with
Section 3.1 and with Section 8, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
- 6 -
<PAGE>
Section 3.3. Expenses. The Company shall prepare, issue and
deliver at its own expense (other than transfer taxes) the new Warrant or
Warrants under this Section 3.
Section 3.4. Maintenance of Books. The Company agrees to
maintain, at its aforesaid office or agency, books for the registration and the
registration of transfer of the Warrants.
ARTICLE 4.
ADJUSTMENTS
-----------
The number of shares of Common Stock for which this Warrant is
exercisable, or the price at which such shares may be purchased upon exercise of
this Warrant, shall be subject to adjustment from time to time as set forth in
this Section 4. The Company shall give the holder notice of any event described
below which requires an adjustment pursuant to this Section 4 at the time of
such event.
Section 4.1. Stock Dividends, Subdivisions, Combinations and
Reclassifications. If the Company shall at any time or from time to time after
the Issue Date:
(a) pay a dividend or make a distribution, on the outstanding
shares of Common Stock in Additional Shares of Common Stock,
(b) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock,
(c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, or
(d) issue by reclassification of its shares of Common Stock any
shares of capital stock of the Company,
then, and in each such case, the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby immediately prior to such event or the
record date therefor, whichever is earlier, shall be adjusted so that the holder
of any Warrant evidenced hereby thereafter exercised shall be entitled to
receive the number of shares of Common Stock or other securities of the Company
which such holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been exercised
immediately prior to the happening of such event or the record date therefor,
whichever is earlier. An adjustment made pursuant to this Section 4.1 shall
become effective (x) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of shares of Common Stock entitled to receive such dividend or
distribution, or (y) in the case of any such subdivision, reclassification or
combination, at the close of business on the day upon which such corporate
action becomes effective.
- 7 -
<PAGE>
Section 4.2. Issuance of Additional Shares of Common Stock or
Convertible Securities. In the case the Corporation shall, after the Issue Date,
issue or sell:
(a) Additional Shares of Common Stock at a price per share, or
(b) Convertible Securities having a Conversion Price per share,
less than the Current Market Price (for a period of 15 consecutive Trading Days
prior to such date), then, and in each such case, the number of shares of Common
Stock issuable upon exercise of the Warrants evidenced hereby shall be adjusted
so that the holder of each Warrant evidenced hereby shall be entitled to
receive, upon the exercise thereof, the number of shares of Common Stock
determined by multiplying (A) the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby on the day immediately prior to such
date by (B) a fraction, the numerator of which shall be the sum of (1) the
number of shares of Common Stock outstanding on the date on which such shares or
Convertible Securities are issued and (2) the number of Additional Shares of
Common Stock issued, or into which the Convertible Securities may convert, and
the denominator of which shall be the sum of (x) the number of shares of Common
Stock outstanding on such date and (y) the number of shares of Common Stock
which the aggregate consideration receivable by the Company for the total number
of shares of Common Stock so issued, or the number of shares of Common Stock
which the aggregate of the Conversion Price of such Convertible Securities so
issued, would purchase at the Current Market Price on such date.
An adjustment made pursuant to this Section 4.2 shall be made on
the next Business Day following the date on which any such issuance is made and
shall be effective retroactively immediately after the close of business on such
date. For purposes of this Section 4.2, the aggregate consideration receivable
by the Company in connection with the issuance of any securities shall be deemed
to be the sum of the aggregate offering price to the public (before deduction of
underwriting discounts or commissions and expenses payable to third parties),
and the "Conversion Price" of any Convertible Securities is the total amount
received or receivable by the Company as consideration for the issue or sale of
such Convertible Securities (before deduction of underwriting discounts or
commissions and expenses payable to third parties) plus the minimum aggregate
amount of additional consideration, if any, payable to the Corporation upon the
conversion, exchange or exercise of any such Convertible Securities.
Neither (A) the issuance of any shares of Common Stock (whether
treasury shares or newly issued shares) pursuant to a dividend or distribution
on, or subdivision, combination or
- 8 -
<PAGE>
reclassification of, the outstanding shares of Common Stock requiring an
adjustment in the number of shares of Common Stock issuable upon exercise of the
Warrants evidenced hereby pursuant to Section 4.1, or pursuant to any employee
benefit plan or program of the Company or pursuant to any option, warrant,
right, or Convertible Security outstanding as of the date hereof (including, but
not limited to, the Rights, the Series B Preferred Stock, the Series C Preferred
Stock and the Warrants) nor (B) the issuance of shares of Common Stock pursuant
thereto shall be deemed to constitute an issuance of Common Stock or Convertible
Securities by the Company to which this Section 4.2 applies.
Upon expiration of any Convertible Securities which shall not
have been exercised or converted and for which an adjustment shall have been
made pursuant to this Section 4.2, the Conversion Price computed upon the
original issue thereof shall upon expiration be recomputed as if the only
additional shares of Common Stock issued were such shares of Common Stock (if
any) actually issued upon exercise or conversion of such Convertible Securities
and the consideration received therefor was the consideration actually received
by the Corporation for the issue of such Convertible Securities (whether or not
exercised or converted) plus the consideration actually received by the
Corporation upon such exercise of conversion.
Section 4.3. Certain Other Distributions. In case the Company
shall at any time or from time to time after the Issue Date declare, order, pay
or make a dividend or other distribution (including, without limitation, any
distribution of stock or other securities or property or rights or warrants to
subscribe for securities of the Company or any of its Subsidiaries by way of
dividend or spin-off), on its Common Stock, other than:
(a) regular quarterly dividends payable in cash in an aggregate
amount not to exceed 15% of net income from continuing operations before
extraordinary items of the Company, determined in accordance with GAAP,
during the period (treated as one accounting period) commencing on July
1, 1998, and ending on the date such dividend is paid, or
(b) dividends or distributions of shares of Common Stock which
are referred to in Section 4.1,
then, and in each such case, the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby shall be adjusted so that the holder
of each share of each Warrant evidenced thereby shall be entitled to receive,
upon the exercise thereof, the number of shares of Common Stock determined by
multiplying (1) the number of shares of Common Stock issuable upon exercise of
the Warrants evidenced hereby on the day immediately prior to the record date
fixed for the determination of stockholders entitled to receive such dividend or
distribution by (2) a fraction, the numerator of which shall be the then
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<PAGE>
Current Market Price per share of Common Stock for the period of 20 Trading Days
preceding such record date, and the denominator of which shall be the Current
Market Price per share of Common Stock for the period of 20 Trading Days
preceding such record date, less the Fair Market Value per share of Common Stock
(as determined in good faith by the Board of Directors of the Company, a
certified resolution with respect to which shall be mailed to the holder of the
Warrants evidenced hereby) of such dividend or distribution; provided, however,
that in the event of a distribution of shares of capital stock of a Subsidiary
of the Company (a "Spin-Off") made to holders of shares of Common Stock, the
numerator of such fraction shall be the sum of the Current Market Price per
share of Common Stock for the period of 20 Trading Days preceding the 35th
Trading Day after the effective date of such Spin-Off and the Current Market
Price of the number of shares (or the fraction of a share) of capital stock of
the Subsidiary which is distributed in such Spin-Off in respect of one share of
Common Stock for the period of 20 Trading Days preceding such 35th Trading Day
and the denominator of which shall be the Current Market Price per share of the
Common Stock for the period of 20 Trading Days proceeding such 35th Trading Day.
An adjustment made pursuant to this Section 4.3 shall be made upon the opening
of business on the next Business Day following the date on which any such
dividend or distribution is made and shall be effective retroactively
immediately after the close of business on the record date fixed for the
determination of stockholders entitled to receive such dividend or distribution;
provided, however, if the proviso to the preceding sentence applies, then such
adjustment shall be made and be effective as of such 35th Trading Day after the
effective date of such Spin-Off.
Section 4.4. Other Provisions Applicable to Adjustments Under
This Section. The following provisions shall be applicable to the making of
adjustments provided for in this Section 4:
(a) For purposes of this Section 4, the number of shares of
Common Stock at any time outstanding shall not include any shares of
Common Stock then owned or held by or for the account of the Company.
(b) The term "dividend", as used in this Section 4 shall mean a
dividend or other distribution upon stock of the Company except pursuant
to the Rights Agreement. Notwithstanding anything in this Section 4 to
the contrary, the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby shall not be adjusted as a
result of any dividend, distribution or issuance of securities of the
Company pursuant to the Rights Agreement.
(c) Notwithstanding anything in this Section 4 to the contrary,
the Company shall not be required to give effect to any adjustment in
the number of shares of Common
- 10 -
<PAGE>
Stock issuable upon exercise of the Warrants evidenced hereby unless and
until the net effect of one or more adjustments (each of which shall be
carried forward), determined as above provided, shall have resulted in a
change in the number of shares of Common Stock issuable upon exercise of
the Warrants evidenced hereby by at least one-hundredth of one share of
Common Stock, and when the cumulative net effect of more than one
adjustment so determined shall be to change the number of shares of
Common Stock issuable upon exercise of the Warrants evidenced hereby by
at least one-hundredth of one share of Common Stock, such change in the
number of shares of Common Stock issuable upon exercise of the Warrants
evidenced hereby shall thereupon be given effect.
(d) The certificate of any firm of independent public accountants
of recognized standing selected by the Board of Directors of the Company
(which may be the firm of independent public accountants regularly
employed by the Company) shall be presumptively correct for any
computation made under this Section 4.
(e) If the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, and shall thereafter and before the distribution to
stockholders thereof legally abandon its plan to pay or deliver such
dividend or distribution, then, no adjustment in the number of shares of
Common Stock issuable upon exercise of the Warrants evidenced hereby
shall be required by reason of the taking of such record.
(f) There shall be no adjustment of the number of shares of
Common Stock issuable upon exercise of the Warrants evidenced hereby in
case of the issuance of any stock of the Company in a merger,
reorganization, acquisition or other similar transaction except as set
forth in Sections 4.1, 4.2 and 4.5.
(g) Notwithstanding anything herein to the contrary, the Company
agrees not to enter into any transaction which, by reason of any
adjustment hereunder, would cause the Exercise Price to be less than the
par value per share of Common Stock.
(h) Upon each adjustment to the number of shares of Common Stock
issuable upon exercise of the Warrants pursuant to Sections 4.1, 4.2 or
4.3, the Exercise Price effective immediately prior to the making of
such adjustment shall thereafter be adjusted to be the amount obtained
by (i) multiplying (A) the applicable number of shares of Common Stock
issuable upon exercise of the Warrants immediately prior to such
adjustment by (B) the Exercise Price in effect immediately prior to such
adjustment and (ii) dividing the
- 11 -
<PAGE>
product so obtained by the number of shares of Common Stock issuable
upon exercise of the Warrants immediately after such adjustment.
Section 4.5. Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets. In case of any reorganization or
reclassification of outstanding shares of Common Stock (other than a
reclassification covered by Section 4.1), or in case of any consolidation or
merger of the Company with or into another corporation, or in the case of any
sale or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety (each of the foregoing being referred
to as a "Transaction"), each such Warrant then outstanding shall thereafter be
exercisable for, in lieu of the Common Stock issuable upon such exercise prior
to consummation of the Transaction, the kind and amount of shares of stock and
other securities and property receivable (including cash) upon the consummation
of the Transaction by a holder of that number of shares of Common Stock issuable
upon exercise of such Warrant immediately prior to the Transaction (including,
on a pro rata basis, the cash, securities or property received by holders of
Common Stock in any tender or exchange offer that is a step in the Transaction).
Section 4.6. Notices to Warrantholders. In case at any time or
from time to time, prior to the Expiration Date, the Company shall pay any
dividend or make any other distribution to the holders of its Common Stock, or
shall offer for subscription pro rata to the holders of its Common Stock any
additional shares of stock of any class or any other right, or there shall be
any capital reorganization or reclassification of the Common Stock of the
Company or consolidation or merger of the Company with or into another
corporation, or any sale or conveyance to another corporation of the property of
the Company as an entirety or substantially as an entirety, or there shall be a
voluntary or involuntary dissolution, liquidation or winding up of the Company,
then, in any one or more of said cases the Company shall give at least 20 days'
prior written notice (the time of mailing of such notice shall be deemed to be
the time of giving thereof) to the registered holder of the Warrants evidenced
hereby at its address as shown on the books of the Company maintained by the
Transfer Agent thereof of the date on which (i) the books of the Company shall
close or a record shall be taken for such stock dividend, distribution or
subscription rights or (ii) such reorganization, reclassification,
consolidation, merger, sale or conveyance, dissolution, liquidation or winding
up shall take place, as the case may be, provided that in the case of any
Transaction to which Section 4.5 applies the Company shall give at least 30
days' prior written notice as aforesaid. Such notice shall also specify the date
as of which the holders of the Common Stock of record shall participate in said
dividend, distribution or subscription rights or shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger,
- 12 -
<PAGE>
sale or conveyance or participate in such dissolution, liquidation or winding
up, as the case may be. Failure to give such notice shall not invalidate any
action so taken.
Section 4.7. Certificates. Upon any adjustment of the number of
shares of Common Stock issuable upon exercise of the Warrants evidenced hereby
or of the Exercise Price, then, and in each such case, the Company shall
promptly deliver to the holders of the Warrants and the Common Stock, a
certificate signed by the President or a Vice President and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company
setting forth in reasonable detail the event requiring the adjustment and the
method by which such adjustment was calculated and specifying the increased or
decreased number of shares of Common Stock issuable upon exercise of the
Warrants evidenced hereby and the Exercise Price then in effect following such
adjustment.
ARTICLE 5.
NO IMPAIRMENT
-------------
The Company shall not by any action including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of the holder of the Warrant against impairment. Without limiting the
generality of the foregoing, the Company will (a) not increase the par value of
any shares of Common Stock receivable upon the exercise of this Warrant above
the Exercise Price immediately prior to such increase in par value, (b) take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock,
free and clear of any liens, claims, encumbrances and restrictions (other than
as provided herein) upon the exercise of this Warrant, and (c) use its best
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant.
Upon the request of the holder of the Warrant, the Company will
at any time during the period this Warrant is outstanding acknowledge in
writing, in form satisfactory to the holder of this Warrant, the continuing
validity of this Warrant and the obligations of the Company hereunder.
- 13 -
<PAGE>
ARTICLE 6.
RESERVATION AND AUTHORIZATION OF
COMMON STOCK; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY
--------------------------------------
The Company covenants and agrees that, until the Expiration Date,
the Company shall at all times reserve and keep available for issue upon the
exercise of Warrants such number of its authorized but unissued shares of Common
Stock as will be sufficient to permit the exercise in full of all outstanding
Warrants. All shares of Common Stock which shall be so issuable, when issued
upon exercise of Warrants and payment therefor in accordance with the terms of
such Warrant, shall be duly and validly issued, fully paid and nonassessable and
free and clear of any liens, claims and restrictions (other than as provided
herein). No stockholder of the Company has or shall have any preemptive rights
to subscribe for such shares of Common Stock.
Before taking any action which would result in an adjustment in
the number of shares of Common Stock for which this Warrant is exercisable or in
the Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
ARTICLE 7.
STOCK AND WARRANT TRANSFER BOOKS
--------------------------------
The Company will not at any time, except upon dissolution,
liquidation or winding up of the Company, close its stock transfer books or
Warrant transfer books so as to result in preventing or delaying the exercise or
transfer of any Warrant.
ARTICLE 8.
RESTRICTIONS ON TRANSFERABILITY
-------------------------------
The Warrants and the Warrant Stock shall not be transferred
before satisfaction of the conditions specified in this Section 8, which
conditions are intended to ensure compliance with the provisions of the
Securities Act and state securities laws with respect to the Transfer of any
Warrant or any Warrant Stock. The holder, by acceptance of this Warrant, agrees
to be bound by the provisions of this Section 8.
Section 8.1. Restrictive Legend.
(a) Except as otherwise provided in this Section 8, each
certificate for Warrant Stock initially issued upon the exercise of this
Warrant, and each certificate for Warrant Stock issued to any subsequent
transferee of any such certificate, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
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<PAGE>
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state and are subject to the conditions
specified in a certain Warrant dated January 4, 1998, originally
issued by Aames Financial Corporation. The shares represented by
this certificate may not be transferred in violation of such Act
and laws, the rules and regulations thereunder or the provisions
of the Warrant. A copy of the form of said Warrant is on file
with the Secretary of Aames Financial Corporation. The holder of
this certificate, by acceptance of this certificate, agrees to be
bound by the provisions of such Warrant."
(b) Except as otherwise provided in this Section 8, each Warrant
shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"This Warrant and the securities represented hereby have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state and may not be sold or otherwise
transferred in the absence of such registration or an exemption
therefrom under such Act and under any such applicable state
laws, or in violation of the provisions of this Warrant."
Section 8.2. Transfers. Prior to any transfer or attempted
transfer of any Warrants or any shares of Restricted Common Stock, the holder of
such Warrants or Restricted Common Stock shall give notice (a "Transfer Notice")
to the Company of such holder's intention to effect such transfer, describing
the manner and circumstances of the proposed transfer, and obtain from counsel a
written opinion addressed and reasonably satisfactory to the Company that the
proposed transfer of such Warrants or such Restricted Common Stock may be
effected without registration under the Securities Act and applicable state
securities laws. After receipt of the Transfer Notice and written opinion, the
Company shall, within two Business Days thereof, so notify the holder of such
Warrants or such Restricted Common Stock and such holder shall thereupon be
entitled to transfer such warrants or such Restricted Common Stock, in
accordance with the terms of the Transfer Notice. Each certificate, if any,
evidencing such shares of Restricted Common Stock issued upon such transfer
shall bear the restrictive legend set forth in Section 8.1(a), and each Warrant
issued upon such transfer shall bear the restrictive legend set forth in Section
8.1(b), unless in the written opinion of counsel addressed to the Company such
legend is not required in order to ensure compliance with the Securities Act.
- 15 -
<PAGE>
Section 8.3. Termination of Restrictions. Notwithstanding the
foregoing provisions of Section 8, the restrictions imposed by this Section 8
upon the transferability of the Warrants, the Warrant Stock and the Restricted
Common Stock (or Common Stock issuable upon the exercise of the Warrants) and
the legend requirements of Section 8.1 shall terminate as to any particular
Warrant or share of Warrant Stock or Restricted Common Stock (or Common Stock
issuable upon the exercise of the Warrants) (i) as to the Warrant Stock and
Restricted Common Stock, when and so long as the resale of such security shall
have been effectively registered under the Securities Act and disposed of
pursuant thereto, or (ii) as to the Warrant, Warrant Stock and Restricted Common
Stock, when the holder of the Warrant, Warrant Stock or Restricted Common Stock
shall have delivered to the Company the written opinion of counsel addressed and
reasonably satisfactory to the Company stating that such legend is not required
in order to ensure compliance with the Securities Act. Whenever the restrictions
imposed by this Section shall terminate as to any share of Restricted Common
Stock, as hereinabove provided, the holder thereof shall be entitled to receive
from the Company, at the Company's expense (except for any transfer taxes), a
new certificate representing such Common Stock not bearing the restrictive
legend set forth in Section 8.1(a).
ARTICLE 9.
SUPPLYING INFORMATION
---------------------
The Company shall cooperate with the holder of the Warrant and
the holder of Restricted Common Stock in supplying such information as may be
reasonably requested by such holder or reasonably necessary for such holder to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of an exemption
from the Securities Act for the sale of any Warrant or Restricted Common Stock.
ARTICLE 10.
LOSS OR MUTILATION
------------------
Upon receipt by the Company from any holder of evidence
reasonably satisfactory to the Company of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and indemnity reasonably satisfactory
to it and in case of mutilation upon surrender and cancellation hereof, the
Company will execute and deliver in lieu hereof a new Warrant of like tenor to
the holder; provided, in the case of mutilation, no indemnity shall be required
if this Warrant in identifiable form is surrendered to the Company for
cancellation.
- 16 -
<PAGE>
ARTICLE 11.
OFFICE OF THE COMPANY
---------------------
As long as any of the Warrants remain outstanding, the Company
shall maintain an office or agency (which may be the principal executive offices
of the Company) where the Warrants may be presented for exercise, registration
of transfer, division or combination as provided in this Warrant.
ARTICLE 12.
REGISTRATION RIGHTS
-------------------
The Warrant Stock issuable upon exercise of this Warrant are
entitled to the benefits of the Registration Rights Agreement. The Company shall
keep a copy of the Registration Rights Agreement, and any amendments thereto, at
the office or agency designated by the Company pursuant to Section 11 and shall
furnish copies thereof to the holder upon request.
ARTICLE 13.
LIMITATION OF LIABILITY
-----------------------
No provision hereof, in the absence of affirmative action by the
holder to purchase shares of Common Stock, and no enumeration herein of the
rights or privileges of the holder hereof, shall give rise to any liability of
the holder for the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
ARTICLE 14.
REPRESENTATION OF HOLDER
------------------------
The holder represents that it is acquiring the Warrant and the
Warrant Stock for the purpose of investment and not with a view to the resale or
distribution hereof or thereof; provided, that the disposition of holder's
property shall at all times be and remain within its control.
ARTICLE 15.
MISCELLANEOUS
-------------
Section 15.1. Nonwaiver and Expenses. No course of dealing or any
delay or failure to exercise any right hereunder on the part of the parties
shall operate as a waiver of such right or otherwise prejudice the parties'
rights, powers or remedies. If the Company fails to comply with any provision of
this Warrant, the Company shall pay to the holder such amounts as shall be
sufficient to cover any costs and expenses including, but not limited to,
reasonable attorneys' fees incurred by the holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
- 17 -
<PAGE>
Section 15.2. No Rights As Stockholder. The Person in whose name
this Warrant is registered shall be deemed the owner hereof and of the Warrants
evidenced hereby for all purposes. The registered holder of this Warrant shall
not be entitled to any rights whatsoever as a stockholder of the Company except
as herein provided.
Section 15.3. Notice Generally. Any notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder to be
made pursuant to the provisions of this Warrant shall be sufficiently given or
made if in writing and either delivered in person with receipt acknowledged or
sent by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) If to the holder, at its last known address appearing on the
books of the Company maintained for such purpose.
(b) If to the Company:
Aames Financial Corporation
2 California Plaza
350 South Grand Avenue
Los Angeles, California 90071
Attention: Cary Thompson
Fax No.: (323) 210-4537
with a copy to:
Troop Steuber Pasich Reddick & Tobey
2029 Century Park East
Los Angeles, California 90067
Attention: C. N. Franklin Reddick, Esq.
Fax No.: (310) 728-2204
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, or three (3) Business Days after the same
shall have been deposited in the United States mail.
Section 15.4. Successors and Assigns. Subject to the provisions
of Sections 3.1 and 8, (i) this Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors of the Company and
the successors and assigns of the holder, and (ii) the provisions of this
Warrant are intended to be for the benefit of all holders from time to time of
this Warrant, and shall be enforceable by any such holders.
- 18 -
<PAGE>
Section 15.5. Amendment. The Warrants may be modified or amended
or the provisions thereof waived with the written consent of the Company and the
holders of the majority of the portion of this Warrant then outstanding.
Section 15.6. Severability. Wherever possible, each provision of
this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Warrant.
Section 15.7. Headings. The headings used in this Warrant are for
the convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant.
Section 15.8. Governing Law. This Warrant shall be governed by
and construed in accordance with the laws of the State of Delaware, without
giving effect to conflicts of law principles thereof.
Section 15.10. Mutual Waiver of Jury Trial. BECAUSE DISPUTES
ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS WARRANT.
- 19 -
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed by its authorized officer on January 4, 1999.
AAMES FINANCIAL CORPORATION
By:________________________
Name:
Title:
- 20 -
<PAGE>
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for the purchase of _____ Shares of Common Stock of AAMES
FINANCIAL CORPORATION and herewith makes payment therefor, all at the price and
on the terms and conditions specified in this Warrant and requests that
certificates for the shares of Common Stock hereby purchased (and any securities
or other property issuable upon such exercise) be issued in the name of and
delivered to __________________ whose address is ____________________ and, if
such shares of Common Stock shall not include all of the shares of Common Stock
issuable as provided in this Warrant, that a new Warrant of like tenor and date
for the balance of the shares of Common Stock issuable hereunder be delivered to
the undersigned.
______________________ (Name of Registered Owner)
______________________ (Signature of Registered owner)
______________________ (Street Address)
______________________ (City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below all of
the rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
Name and Address of Assignee No. of Shares of Common Stock
and does hereby irrevocably constitute and appoint ____________ attorney-in-fact
to register such transfer on the books of AAMES FINANCIAL CORPORATION maintained
for the purpose, with full power of substitution in the premises.
Dated:___________________________
Name:____________________________
Signature:_______________________
Witness:_________________________
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
Exhibit D
AAMES FINANCIAL CORPORATION
1999 STOCK OPTION PLAN
ARTICLE I.
Purpose
-------
This Stock Option Plan (the "Plan") is intended as an incentive
and to encourage stock ownership by officers and certain other key employees of
Aames Financial Corporation (the "Company") in order to increase their
proprietary interest in the Company's success and to encourage them to remain in
the employ of the Company.
The term "Company," when used in the Plan with reference to
eligibility and employment, shall include the Company and its subsidiaries. The
word "subsidiary," when used in the Plan, shall mean any subsidiary of the
Company within the meaning of Section 424(f) of the Internal Revenue Code of
1986, as amended (the "Code").
It is intended that certain options granted under this Plan will
qualify as "incentive stock options" under Section 422 of the Code. All grants
under the Plan shall be subject to obtaining the approvals required to be
obtained under Article XVIII by June 30, 1999. If either of such approvals is
not obtained on a timely basis, all grants under the Plan shall be void ab
initio, and the Plan shall be of no further force or effect.
ARTICLE II.
Administration
--------------
The Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Company (the "Board") appointed by
the Board which shall consist of not less than three members, two of whom shall
be appointed by Capital Z Financial Services Fund II, L.P. ("Capital Z") during
any period that Capital Z and/or its designated purchasers under the Preferred
Stock Purchase Agreement by and among the Company and Capital Z, dated as of the
23rd day of December, 1998 (the "Purchase Agreement") own at least 25% of the
outstanding voting securities of the Company (the "Minimum Stock Ownership
Threshold"). Each of the members of the Compensation Committee should be an
"outside director" within the meaning of Section 162(m) of the Code. Subject to
the provisions of the Plan, the Committee shall have sole authority, in its
absolute discretion: (a) to determine which of the eligible employees of the
Company shall be granted options; (b) to authorize the granting of both
incentive stock options and nonqualified options; (c) to determine
<PAGE>
the times when options shall be granted and the number of shares to be optioned;
(d) to determine the option price of the shares subject to each option, which
price shall be not less than the minimum specified in ARTICLE V; (e) to
determine the time or times when each option becomes exercisable, the duration
of the exercise period and any other restrictions on the exercise of options
issued hereunder; (f) to prescribe the form or forms of the option agreements
under the Plan (which forms shall be consistent with the terms of the Plan but
need not be identical); (g) to adopt, amend and rescind such rules and
regulations as, in its opinion, may be advisable in the administration of the
Plan; and (h) to construe and interpret the Plan, the rules and regulations and
the option agreements under the Plan and to make all other determinations deemed
necessary or advisable for the administration of the Plan. All decisions,
determinations and interpretations of the Committee shall be final and binding
on all optionees.
ARTICLE III.
Stock
-----
The stock to be optioned under the Plan shall be shares of
authorized but unissued Common Stock of the Company, par value $.001 per share,
or previously issued shares of Common Stock reacquired by the Company (the
"Stock"). Under the Plan, the total number of shares of Stock which may be
purchased pursuant to options granted hereunder shall not exceed, in the
aggregate, 14,612,008 shares, except as such number of shares shall be adjusted
in accordance with the provisions of ARTICLE X hereof.
The number of shares of Stock available for grant of options
under the Plan shall be decreased by the sum of the number of shares with
respect to which options have been issued and are then outstanding and the
number of shares issued upon exercise of options. In the event that any
outstanding option under the Plan for any reason expires, is terminated or is
canceled prior to the end of the period during which options may be granted, the
shares of Stock called for by the unexercised portion of such option may again
be subject to an option under the Plan.
ARTICLE IV.
Eligibility of Participants
---------------------------
Subject to ARTICLE VII in the case of incentive stock options,
officers and other key employees of the Company (excluding any person who is a
member of the Committee) shall be eligible to receive options under the Plan. In
addition, options which are not incentive stock options may be granted to
consultants or other key persons (excluding any person who is a member of the
Committee) who the Committee determines shall receive options under the Plan. No
- 2 -
<PAGE>
person may receive options for more than 7,306,004 shares of Outstanding Stock
during the term of the Plan.
ARTICLE V.
Option Exercise Price
---------------------
Subject to ARTICLE VII in the case of incentive stock options,
except as otherwise provided by the Committee in the option agreement, the
option exercise price of each option granted under the Plan shall not be less
than the Fair Market Value of stock at the time the option is granted. Fair
Market Value shall in all cases be based on trading days occurring after the
"Initial Closing Date" as such term is defined in the Purchase Agreement. For
purposes of the Plan, the Fair Market Value on a given date means (i) if the
Stock is listed on a national securities exchange, the average of the closing
sale prices reported as having occurred on the primary exchange with which the
Stock is listed and traded during the twenty (20) trading days occurring
immediately prior to such date; (ii) if the Stock is not listed on any national
securities exchange but is quoted in the National Market System of the National
Association of Securities Dealers Automated Quotation System on a last sale
basis, the average between the high bid price and low ask price reported during
the twenty (20) trading days occurring immediately prior to such date; or (iii)
if the Stock is not listed on a national securities exchange nor quoted in the
National Market System of the National Association of Securities Dealers
Automated Quotation System on a last sale basis, the amount determined by the
Committee to be the fair market value based upon a good faith attempt to value
the Stock accurately and computed in accordance with applicable regulations of
the Internal Revenue Service.
ARTICLE VI.
Exercise and Terms of Options
-----------------------------
Subject to this ARTICLE VI, the Committee shall determine the
dates after which options may be exercised, in whole or in part. If an option is
exercisable in installments, installments or portions thereof which are
exercisable and not exercised shall remain exercisable.
Unless otherwise provided in the option agreement or agreed to by
the Committee at the time of exercise, each optionee shall enter into a binding
agreement with the Company at the time of grant pursuant to which such optionee
agrees (i) not to sell, assign or otherwise transfer more than 25% of the Stock
purchased pursuant to an Option in any given year and (ii) in aggregate not to
sell, assign or otherwise transfer more than 25% of the Stock purchased pursuant
to an Option over a five year period beginning on the effective date of this
Plan. Appropriate legends shall be
- 3 -
<PAGE>
placed on the stock certificates evidencing shares issued upon exercise of
options to reflect such transfer restrictions.
Any other provision of the Plan to the contrary notwithstanding,
but subject to ARTICLE VII in the case of incentive stock options, no option
shall be exercised after the date ten years from the date of grant of such
option (the "Termination Date").
If prior to the Termination Date, an optionee shall cease to be
employed by the Company by reason of a disability, as defined in Section
22(e)(3) of the Code, or by reason of retirement on or after age 65
("Retirement") the option shall remain exercisable until the earlier of the
Termination Date or one year after the date of cessation of employment to the
extent the option was exercisable at the time of cessation of employment.
In the event of the death of an optionee prior to the Termination
Date and while employed by the Company, or while entitled to exercise an option
pursuant to the preceding paragraph or the next to last sentence of the
subsequent paragraph, the option shall remain exercisable until the earlier of
the Termination Date or one year after the date of death, by the person or
person to whom the optionee's rights under the option pass by will or the
applicable laws of descent and distribution, to the extent that the optionee was
entitled to exercise it on the date of death.
Unless otherwise provided in the option agreement, if an optionee
voluntarily terminates employment with the Company for reasons other than (i)
death, (ii) disability, (iii) Retirement, or (iv) Good Reason (as hereinafter
defined), or if an optionee's employment with the Company is terminated for
Cause (as hereinafter defined), all options previously granted to such optionee
which have not been exercised prior to such termination shall lapse and be
canceled. If the Company terminates an optionee's employment without Cause, or
if an optionee terminates his employment for Good Reason, all options previously
granted to such optionee which were vested and satisfied all conditions to
exercisability immediately prior to such termination shall continue to be vested
and exercisable for a period not extending beyond the earlier of the Termination
Date or one year after the date of such termination. In addition, if a Change in
Control (as defined in Article XI hereof) occurs within six months from the date
of termination of employment of an optionee referred to in the preceding
sentence, unvested options shall become vested and exercisable to the same
extent as if the Change in Control had occurred on the date of his termination
of employment, and any such options shall continue to be exercisable until the
earlier of the Termination Date or the first anniversary of optionee's
termination of employment.
In the case of any optionee who has an employment agreement with
the Company, it shall be a condition to exercise of an option that the optionee
not have engaged in any material and
- 4 -
<PAGE>
knowing or intentional breach of his employment agreement. After the expiration
of the exercise period described in any of the preceding four paragraphs hereof,
options shall terminate together with all of the optionee's rights thereunder,
to the extent not previously exercised.
For purposes of the Plan, the Company shall have "Cause" to
terminate an optionee's employment if the Company has cause to terminate the
optionee's employment under any existing employment agreement between the
optionee and the Company or, in the absence of an employment agreement between
the optionee and the Company, if the Company terminates the optionee after the
Company reasonably determines that the optionee: (1) shall have been determined
by a court of law to have committed any felony including, but not limited to, a
felony involving fraud, theft, misappropriation, dishonesty, embezzlement, or
any other crime involving moral turpitude, or if the optionee shall have been
arrested or indicted for violation of any criminal statute constituting a
felony, provided the Company reasonably determines that the continuation of the
optionee's employment after such event would have an adverse impact on the
operation or reputation of the Company or its affiliates (subsequent references
to the "Company" in this paragraph shall be deemed to refer to the Company or
its affiliates); (2) shall have committed one or more acts or gross negligence
or willful misconduct that, in the good faith opinion of the Company, materially
impair the goodwill or business of the Company or cause material damage to its
property, goodwill, or business, or would, if known, subject the Company to
public ridicule; (3) shall have refused or failed to a material degree to
perform his duties hereunder (continuing without cure for ten (10) days after
receipt of written notice of need to cure); (4) shall have violated any material
written Company policy provided to the Executive during or prior to the Term
(continuing without cure for ten (10) days after receipt of written notice of
need to cure) and that has caused material harm to the Company; or (5) knew, or
should have known, that the Company materially, and knowingly or intentionally
breached any representation, warranty, or covenant under the Purchase Agreement
or, if the optionee has an employment agreement with the Company, the optionee
shall have materially and intentionally or knowingly breached any provision of
such employment agreement.
For purposes of the Plan, in the case of an optionee who is not
an employee of the Company, references to employment herein shall be deemed to
refer to such person's relationship to the Company.
Upon any merger or reorganization or other business combination
in which the Company shall not be the surviving corporation, or a dissolution or
liquidation of the Company, or a sale of all or substantially all of the
Company's assets, all outstanding options shall terminate; provided, however,
that the Company shall cause either (i) the optionees to be paid an amount equal
to the difference between (A) the aggregate fair market
- 5 -
<PAGE>
value (determined in accordance with ARTICLE V of the Plan) of the Stock subject
to options held by the optionees at the time of such transaction that have
become vested and exercisable by the terms of the Plan and the applicable option
agreements (either as a result of or prior to such transaction) and (B) the
aggregate exercise price of such options, or (ii) the surviving or resulting
corporation to grant the optionees substitute options to purchase its shares on
such terms and conditions, both as to the number of shares and otherwise, which
the Committee shall deem appropriate.
Notwithstanding the foregoing provisions of this ARTICLE VI or
the terms of any option agreement, the Committee may in its sole discretion
accelerate the exercisability of any option granted hereunder. Any such
acceleration shall not affect the terms and conditions of any such option other
than with respect to exercisability.
ARTICLE VII.
Special Provisions Applicable
to Incentive Stock Options Only
-------------------------------
To the extent the aggregate fair market value (determined as of
the time the option is granted) of the Stock with respect to which any options
granted hereunder which are intended to be incentive stock options may be
exercisable for the first time by the optionee in any calendar year (under this
Plan or any other stock option plan of the Company or any parent or subsidiary
thereof) exceeds $100,000, such options shall not be considered incentive stock
options.
No incentive stock option may be granted to an individual who, at
the time the option is granted, owns directly, or indirectly within the meaning
of Section 424(d) of the Code, stock possessing more than 10 percent of the
total combined voting power of all classes of stock of the Company or of any
parent or subsidiary thereof, unless such option (i) has an option price of at
least 110 percent of the fair market value of the Stock on the date of the grant
of such option; and (ii) cannot be exercised more than five years after the date
it is granted.
Each optionee who receives an incentive stock option must agree
to notify the Company in writing immediately after the optionee makes a
disqualifying disposition of any Stock acquired pursuant to the exercise of an
incentive stock option. A disqualifying disposition is any disposition
(including any sale) of such Stock before the later of (a) two years after the
date the optionee was granted the incentive stock option or (b) one year after
the date the optionee acquired Stock by exercising the incentive stock option.
- 6 -
<PAGE>
ARTICLE VIII.
Payment for Shares
------------------
Payment for shares of Stock purchased under an option granted
hereunder shall be made in full upon exercise of the option, by certified or
bank cashier's check payable to the order of the Company or by any other means
acceptable to the Company. The Stock purchased shall thereupon be promptly
delivered; provided, however, that the Company may, in its discretion, require
that an optionee pay to the Company, at the time of exercise, such amount as the
Company deems necessary to satisfy its obligation to withhold Federal, state or
local income or other taxes incurred by reason of the exercise or the transfer
of shares thereupon.
ARTICLE IX.
Non-Transferability of Option Rights
------------------------------------
No option shall be transferable except by will or the laws of
descent and distribution. During the lifetime of the optionee, the option shall
be exercisable only by him. The Committee may, however, in its sole discretion,
allow for transfer of options which are not incentive stock options to other
persons or entities, subject to such conditions or limitations as it may
establish.
ARTICLE X.
Adjustment for Recapitalization, Merger, etc.
---------------------------------------------
The aggregate number of shares of Stock which may be purchased
pursuant to options granted hereunder, the maximum number of shares for which
options may be granted to any one person the number of shares of Stock covered
by each outstanding option and the price per share thereof in each such option
shall be appropriately adjusted for any increase or decrease in the number of
outstanding shares of stock resulting from a stock split or other subdivision or
consolidation of shares of Stock or for other capital adjustments or payments of
stock dividends or distributions or other increases or decreases in the
outstanding shares of Stock without receipt of consideration by the Company. Any
adjustment shall be conclusively determined by the Committee.
In the event of any change in the outstanding shares of Stock by
reason of any recapitalization, merger, consolidation, spin-off, combination or
exchange of shares or other corporate change, or any distributions to common
shareholders other than cash dividends, the Committee shall make such
substitution or adjustment, if any, as it deems to be equitable, as to the
number or kind of shares of Stock or other securities issued or reserved for
issuance pursuant to the Plan, and the number or kind of shares
- 7 -
<PAGE>
of Stock or other securities covered by outstanding options, and the option
price thereof. In instances where another corporation or other business entity
is being acquired by the Company, and the Company has assumed outstanding
employee option grants and/or the obligation to make future or potential grants
under a prior existing plan of the acquired entity, similar adjustments are
permitted at the discretion of the Committee. The Committee shall notify
optionees of any intended sale of all or substantially all of the Company's
assets within a reasonable time prior to such sale.
The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any such adjustment may provide for the elimination of any
fractional share which might otherwise become subject to an option.
ARTICLE XI.
Effect of Change in Control
---------------------------
(a) Except to the extent otherwise provided in a particular
option agreement or in paragraph (c) below, in the event of a "Change in
Control," notwithstanding any unsatisfied service requirement established in the
option agreement, such option shall become immediately exercisable with respect
to 100 percent of the shares subject to such option.
(b) For purposes of the Plan, a Change in Control shall, subject
to subsection (c) below, be deemed to occur if, after the date the conditions of
Article XVIII have been satisfied (i) any "person" (as that term is used in
Sections 13 and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than Capital Z or any of its affiliates, is or becomes
the beneficial owner (as that term is used in Section 13(d) of the Exchange
Act), directly or indirectly, of 50% or more of either the outstanding shares of
Common Stock or the combined voting power of the Company's then outstanding
voting securities entitled to vote generally, (ii) the Company is merged,
consolidated or reorganized into or with another corporation or another legal
entity and, as a result of such merger, consolidation or reorganization, less
than 50% of the combined voting power of the then-outstanding securities of such
corporation or entity immediately after such transaction is held in the
aggregate by the holders of the combined voting power of the securities of the
Company entitled to generally in the election of directors of the Company
immediately prior to such transaction, (iii) individuals who constitute the
Board at the beginning of such period cease for any reason to constitute at
least a majority thereof, unless the election or the nomination for election by
the Company's shareholders of each new director was approved by a vote of at
least three-quarters of the directors then still in office who were directors at
the
- 8 -
<PAGE>
beginning of the period or (iv) the Company undergoes a liquidation or
dissolution or a sale of all or substantially all of the assets of the Company.
No merger, consolidation or corporate reorganization in which the owners of the
combined voting power of the Company's then outstanding voting securities
entitled to vote generally prior to said combination, own 50% or more of the
resulting entity's outstanding voting securities shall, by itself, be considered
a Change in Control.
(c) Notwithstanding any other provision of this Plan, unless (i)
an optionee terminates his employment for Good Reason, or (ii) is terminated by
the Company without Cause, in either case within one year after a Change in
Control (as defined in subsection (b) above), no event shall be treated as a
Change in Control unless all equity securities of the Company then held by
Capital Z are contemporaneously exchanged for cash or other liquid assets, which
Capital Z is free to sell on a basis reasonably likely to result in receipt of
cash proceeds equal to or greater than the price payable to shareholders upon a
Change in Control (such event is referred to as a "Capital Z Realization Event"
and such price is referred to as the "Change in Control Price"). If an
optionee's employment is terminated by the Company without Cause or by the
optionee for Good Reason within one year after a Change in Control (as defined
in subsection (b) above), the event shall be treated as both a Change in Control
and a Capital Z Realization Event with respect to such optionee and acceleration
of vesting shall occur to the extent the performance conditions established in
the option agreement were satisfied as of the date of the Change in Control.
ARTICLE XII.
No Obligation to Exercise Option
--------------------------------
Granting of an option shall impose no obligation on the recipient
to exercise such option.
ARTICLE XIII.
Use of Proceeds
---------------
The proceeds received from the sale of Stock pursuant to the Plan
shall be used for general corporate purposes.
ARTICLE XIV.
Rights as a Stockholder
-----------------------
An optionee or a transferee of an option shall have no rights as
a stockholder with respect to any share covered by his option until he shall
have become the holder of record of such
- 9 -
<PAGE>
share, and he shall not be entitled to any dividends or distributions or other
rights in respect of such share for which the record date is prior to the date
on which he shall have become the holder of record thereof.
Notwithstanding anything herein to the contrary, the Committee,
in its sole discretion, may restrict the transferability of all or any number of
shares issued under the Plan upon the exercise of an option by legending the
stock certificate as it deems appropriate.
ARTICLE XV.
Employment Rights
-----------------
Nothing in the Plan or in any option granted hereunder shall
confer on any optionee any right to continue in the employ of the Company or any
of its subsidiaries, or to interfere in any way with the right of the Company or
any of its subsidiaries to terminate the optionee's employment at any time for
any reason, whether or not for Cause.
ARTICLE XVI.
Compliance with Law
-------------------
The Company is relieved from any liability for the nonissuance or
non-transfer or any delay in issuance or transfer of any shares of Stock subject
to options under the Plan which results from the inability of the Company to
obtain or in any delay in obtaining from any regulatory body having
jurisdiction, all requisite authority to issue or transfer shares of Stock of
the Company either upon exercise of the options under the Plan or shares of
Stock issued as a result of such exercise if counsel for the Company deems such
authority necessary for lawful issuance or transfer of any such shares,
Appropriate legends may be placed on the stock certificates evidencing shares
issued upon exercise of options to reflect such transfer restrictions.
Each option granted under the Plan is subject to the requirement
that if at any time the Committee determines, in its discretion, that the
listing, registration or qualification of shares of Stock issuable upon exercise
of options is required by any securities exchange or under any state or Federal
law, or that the consent or approval of any governmental regulatory body is
necessary or desirable as a condition of, or in connection with, the grant of
options or the issuance of shares of Stock, no shares of Stock shall be issued,
in whole or in part, unless such listing, registration, qualification, consent
or approval has been effected or obtained free of any conditions or with such
conditions as are acceptable to the Committee.
- 10 -
<PAGE>
ARTICLE XVII.
Cancellation of Options
-----------------------
The Committee, in its discretion, may, with the consent of any
optionee, cancel any outstanding option hereunder.
ARTICLE XVIII.
Effective Date and Expiration Date of Plan
------------------------------------------
The Plan is effective as of the Initial Closing Date, subject to
(i) approval by the stockholders of the Company in a manner which complies with
Section 162(m) and Section 422(b)(1) of the Code and the Treasury Regulations
thereunder, such approval to occur at the next meeting of stockholders of the
Company, and (ii) the consummation, on or prior to June 30, 1999, of the
"Recapitalization," as such term is defined in the Purchase Agreement. The
expiration date of the Plan, after which no option may be granted hereunder,
shall be December 31, 2008.
ARTICLE XIX.
Amendment or Discontinuance of Plan
-----------------------------------
The Board may, without the consent of the Company's stockholders
or optionees under the Plan, at any time terminate the Plan entirely and at any
time or from time to time amend or modify the Plan, provided that no such action
shall adversely affect options theretofore granted hereunder without the
optionee's consent, and provided further that no such action by the Board,
without approval of the stockholders, may (a) increase the total number of
shares of Stock which may be purchased pursuant to options granted under the
Plan, except as contemplated in ARTICLE X, or (b) expand the class of employees
eligible to receive options under the Plan.
ARTICLE XX.
Miscellaneous
-------------
(a) Options shall be evidenced by option agreements (which need
not be identical) in such forms as the Committee may from time to time approve.
Such agreements shall conform to the terms and conditions of the Plan and may
provide that the grant of any option under the Plan and Stock acquired pursuant
to the Plan shall also be subject to such other conditions (whether or not
applicable to the option or Stock received by any other optionee) as the
Committee determines appropriate, including, without limitation, provisions to
assist the optionee in financing the purchase of Stock through the exercise of
options, provisions for
- 11 -
<PAGE>
the forfeiture of, or restrictions on, resale or other disposition of shares
under the Plan, and provisions to comply with Federal and state securities laws
and Federal and state income tax withholding requirements.
(b) If the Committee shall find that any person to whom any
amount is payable under the Plan is unable to care for his affairs because of
illness or accident, or is a minor, or has died, then any payment due to such
person or his estate (unless a prior claim therefor has been made by a duly
appointed legal representative) may, if the Committee so directs the Company, be
paid to his spouse, child, relative, an institution maintaining or having
custody of such person, or any other person deemed by the Committee to be a
proper recipient on behalf of such person otherwise entitled to payment. Any
such payment shall be a complete discharge of the liability of the Committee and
the Company therefor.
(c) No member of the Committee shall be personally liable by
reason of any contract or other instrument executed by such member or on his
behalf in his capacity as a member of the Committee nor for any mistake of
judgment made in good faith, and the Company shall indemnify and hold harmless
each member of the Committee and each other employee, officer or director of the
Company to whom any duty or power relating to the administration or
interpretation of the Plan may be allocated or delegated, against any cost or
expense (including counsel fees) or liability (including any sum paid in
settlement of a claim) arising out of any act or omission to act in connection
with the Plan unless arising out of such person's own fraud or bad faith;
provided, however, that approval of the Company's Board of Directors shall be
required for the payment of any amount in settlement of a claim against any such
person. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled under the
Company's Certificate of Incorporation or By-Laws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold them
harmless.
(d) The Plan shall be governed by and construed in accordance
with the internal laws of the State of Delaware without reference to the
principles of conflicts of law thereof.
(e) No provision of the Plan shall require the Company, for the
purpose of satisfying any obligations under the Plan, to purchase assets or
place any assets in a trust or other entity to which contributions are made or
otherwise to segregate any assets, nor shall the Company maintain separate bank
accounts, books, records or other evidence of the existence of a segregated or
separately maintained or administered fund for such purposes. optionees shall
have no rights under the Plan other than as unsecured general creditors of the
Company, except that insofar as they may have become entitled to payment of
additional compensation
- 12 -
<PAGE>
by performance of services, they shall have the same rights as other employees
under general law.
(f) Each member of the Committee and each member of the Company's
Board of Directors shall be fully justified in relaying, acting or failing to
act, and shall not be liable for having so relied, acted or failed to act in
good faith, upon any report made by the independent public accountant of the
Company and upon any other information furnished in connection with the Plan by
any person or persons other than such member.
(g) References to "Good Reason" as used herein shall relate only
to optionees who have employment agreements with the Company, and in such cases,
shall have the same meaning as set forth in such employment agreement. If the
optionee does not have an employment agreement with the Company, or has an
employment agreement that does not use the term Good Reason, then provisions
relating to such term shall not apply.
(h) Except as otherwise specifically provided in the relevant
plan document, no payment under the Plan shall be taken into account in
determining any benefits under any pension, retirement, profit-sharing, group
insurance or other benefit plan of the Company.
(i) The expenses of administering the Plan shall be borne by the
Company.
Masculine pronouns and other words of masculine gender shall
refer to both men and women.
* * *
As adopted by the Board of Directors of
Aames Financial Corporation as of January __, 1999
- 13 -
<PAGE>
Exhibit E
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND UNDER ANY SUCH
APPLICABLE STATE LAWS, OR IN VIOLATION OF THE PROVISIONS OF THIS WARRANT.
FORM OF
CONTINGENT WARRANT
To Purchase Common Stock of
AAMES FINANCIAL CORPORATION
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS........................................................1
ARTICLE 2. EXERCISE OF WARRANT................................................4
Section 2.1. Manner of Exercise......................................4
Section 2.2. Payment of Taxes........................................6
Section 2.3. Fractional Shares.......................................6
ARTICLE 3. TRANSFER, DIVISION AND COMBINATION.................................6
Section 3.1. Transfer................................................6
Section 3.2. Division and Combination................................7
Section 3.3. Expenses................................................7
Section 3.4. Maintenance of Books....................................7
ARTICLE 4. ADJUSTMENTS........................................................7
Section 4.1. Stock Dividends, Subdivisions, Combinations and
Reclassifications.......................................7
Section 4.2. Issuance of Additional Shares of Common Stock or
Convertible Securities..................................8
Section 4.3. Certain Other Distributions.............................9
Section 4.4. Other Provisions Applicable to Adjustments Under
This Section...........................................10
Section 4.5. Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets.................12
Section 4.6. Notices................................................12
Section 4.7. Certificates...........................................13
ARTICLE 5. NO IMPAIRMENT.....................................................13
ARTICLE 6. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION
WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY....................14
ARTICLE 7. STOCK AND WARRANT TRANSFER BOOKS..................................14
ARTICLE 8. RESTRICTIONS ON TRANSFERABILITY...................................14
Section 8.1. Restrictive Legend.....................................15
Section 8.2. Transfers..............................................15
Section 8.3. Termination of Restrictions............................16
ARTICLE 9. SUPPLYING INFORMATION.............................................16
ARTICLE 10. LOSS OR MUTILATION................................................16
ARTICLE 11. OFFICE OF THE COMPANY.............................................17
ARTICLE 12. REGISTRATION RIGHTS...............................................17
ARTICLE 13. LIMITATION OF LIABILITY...........................................17
i
<PAGE>
ARTICLE 14. REPRESENTATION OF HOLDER..........................................17
ARTICLE 15. MISCELLANEOUS.....................................................17
Section 15.1. Nonwaiver and Expenses.................................17
Section 15.2. No Rights As Stockholder...............................18
Section 15.3. Notice Generally.......................................18
Section 15.4. Successors and Assigns.................................18
Section 15.5. Amendment..............................................19
Section 15.6. Severability...........................................19
Section 15.7. Headings...............................................19
Section 15.8. Governing Law..........................................19
Section 15.9. Mutual Waiver of Jury Trial............................19
ii
<PAGE>
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND UNDER ANY SUCH
APPLICABLE STATE LAWS, OR IN VIOLATION OF THE PROVISIONS OF THIS WARRANT.
WARRANT
To Purchase 3,000,000* Shares of Common Stock of
AAMES FINANCIAL CORPORATION
THIS IS TO CERTIFY THAT [____________________________], or its
registered assigns, is entitled, subject to the provisions of the last sentence
of this paragraph, at any time after June 30, 1999 and prior to December __,
2004 (the "Expiration Date"), to purchase from Aames Financial Corporation, a
Delaware corporation (the "Company"), 3,000,000[*] shares of common stock, par
value $0.001 per share, of the Company (the "Common Stock"), subject to
adjustment as provided herein, in whole or in part, including fractional parts,
at a purchase price of $1.00 per share (the "Exercise Price"), subject to
adjustment as set forth herein, all on the terms and conditions and pursuant to
the provisions hereinafter set forth. Capitalized terms not otherwise defined
herein are used as defined in the Preferred Stock Purchase Agreement.
Notwithstanding anything to the contrary set forth in this Warrant, this Warrant
shall not be exercisable by the holder hereof if the Recapitalization is
completed prior to June 30, 1999.
ARTICLE 1.
DEFINITIONS
-----------
As used in this Warrant, the following terms have the respective
meanings set forth below:
"Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company after the Issue Date, other than Warrant
Stock.
- ----------
* The actual number of shares will be reduced, if necessary, to account
for any shares of Common Stock which may be required to be reserved for
issuance as a result of anti-dilution adjustments in Company securities
outstanding as of the date of execution of the Preferred Stock Purchase
Agreement.
<PAGE>
"Business Day" shall mean any day that is not a Saturday or
Sunday or a day on which banks are required or permitted to be closed in the
State of New York.
"Capital Z" shall have the meaning set forth in the first
paragraph hereof.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall have the meaning set forth in the first
paragraph hereof.
"Company" shall have the meaning set forth in the first paragraph
hereof.
"Conversion Price" shall have the meaning set forth in Section
4.2 hereof.
"Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities which are convertible into or exchangeable,
with or without payment of additional consideration in cash or property, for
Additional Shares of Common Stock, either immediately or upon the occurrence of
a specified date or a specified event.
"Current Market Price" shall mean, when used with reference to
shares of Common Stock or other securities on any date, the closing price per
share of Common Stock or such other securities on such date and, when used with
reference to shares of Common Stock or other securities for any period shall
mean the average of the daily closing prices per share of Common Stock or such
other securities for such period. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock or such other securities are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock or such
other securities are listed or admitted to trading or, if the Common Stock is
not listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. National Market System or such other
securities are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Common Stock or such other securities selected by the Board of Directors
of the Corporation. If the Common Stock or such other
2
<PAGE>
securities are not publicly held or so listed or publicly traded, "Current
Market Price" shall mean the Fair Market Value per share of Common Stock or of
such other securities as determined in good faith by the Board of Directors of
the Corporation based on an opinion of an independent investment banking firm
with an established national reputation as a valuer of securities, which opinion
may be based on such assumption as such firm shall deem to be necessary and
appropriate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Exercise Price" shall have the meaning set forth in the first
paragraph hereof.
"Expiration Date" shall have the meaning set forth in the first
paragraph hereof.
"Fair Market Value" shall mean the amount which a willing buyer
would pay a willing seller in an arm's-length transaction.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as from time to time in effect.
"holder" shall mean, as the context requires, the Person in whose
name this Warrant is registered on the books of the Company maintained for such
purpose and/or the Person holding any Warrant Stock.
"Issue Date" shall mean the date on which this Warrant is issued.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, corporation or other entity and shall include
any successor (by merger or otherwise) of such entity.
"Preferred Stock Purchase Agreement" shall mean the Preferred
Stock Purchase Agreement, dated as of December 23, between the Company and
Capital Z.
"Registration Rights Agreement" shall mean the Registration
Rights Agreement, dated as of the date hereof, between the Company and Capital
Z.
"Restricted Common Stock" shall mean shares of Common Stock which
are, or which upon their issuance on the exercise of this Warrant would be,
evidenced by a certificate bearing the restrictive legend set forth in Section
8.1(a).
3
<PAGE>
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder.
"Series B Preferred Stock" shall mean the Series B Convertible
Preferred Stock, par value $0.001 per share, to be issued pursuant to the
Preferred Stock Purchase Agreement.
"Series C Preferred Stock" shall mean the Series C Convertible
Preferred Stock, par value $0.001 per share, to be issued pursuant to the
Preferred Stock Purchase Agreement.
"Subsidiary" shall mean any corporation of which an aggregate of
more than 50% of the outstanding stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether,
at the time, stock of any other class or classes of such corporation shall have
or might have voting power by reason of the happening of any contingency) is at
the time, directly or indirectly, owned legally or beneficially by the Company
and/or one or more Subsidiaries of the Company.
"Trading Day" means a day on which the principal national
securities exchange on which the Common Stock is listed or admitted to trading
is open for the transaction of business or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, a Business Day.
"Transaction" shall have the meaning set forth in Section 4.5
hereof.
"transfer" shall mean any transfer, sale, encumbrance,
hypothecation or other disposition of this Warrant or any Warrant Stock or of
any interest in either thereof.
"Transfer Notice" shall have the meaning set forth in Section
8.2.
"Warrant Price" shall mean an amount equal to (i) the number of
shares of Common Stock being purchased upon exercise of this Warrant pursuant to
Section 2.1, multiplied by (ii) the Exercise Price as of the date of such
exercise.
"Warrant Stock" shall mean the shares of Common Stock purchased
by the holder of this Warrant upon the exercise thereof.
ARTICLE 2.
EXERCISE OF WARRANT
-------------------
Section 2.1. Manner of Exercise. From and after the date hereof
and until 5:00 P.M., New York time, on the Expiration Date, the holder may
exercise this Warrant for all or any part of the number of shares of Common
Stock purchasable hereunder.
4
<PAGE>
In order to exercise this Warrant, in whole or in part, the
holder shall deliver to the Company at its office at 2 California Plaza, 350
South Grand Avenue, Los Angeles, California 90071, or at the office or agency
designated by the Company pursuant to Section 11, (i) a written notice of the
holder's election to exercise this Warrant, which notice shall specify the
number of shares of Common Stock to be purchased, (ii) payment of the Warrant
Price in the manner provided below, and (iii) this Warrant. Such notice shall be
substantially in the form of the subscription form appearing at the end of this
Warrant as Exhibit A, duly executed by or on behalf of the holder. Upon receipt
thereof, the Company shall, as promptly as practicable, and in any event within
five (5) Business Days thereafter, execute or cause to be executed and deliver
or cause to be delivered to the holder a certificate or certificates
representing the aggregate number of full shares of Common Stock issuable upon
such exercise, together with cash in lieu of any fraction of a share, as
hereinafter provided. The stock certificate or certificates so delivered shall
be, to the extent possible, in such denomination or denominations as such holder
shall request in the notice and shall be registered in the name of the holder
or, subject to Section 8, such other name as shall be designated in the notice.
This Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and the holder or any other
Person so designated to be named therein shall be deemed to have become a holder
of record of such shares for all purposes, as of the date the notice, together
with the cash, check or checks and/or securities, if any, and this Warrant, are
received by the Company as described above and all taxes required to be paid by
the holder, if any, pursuant to Section 2.2 prior to the issuance of such shares
have been paid. If this Warrant shall have been exercised in part, the Company
shall, at the time of delivery of the certificate or certificates representing
Warrant Stock, deliver to the holder a new Warrant evidencing the rights of the
holder to purchase the unpurchased shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of the holder, appropriate notation may be made on
this Warrant and the same returned to the holder.
Payment of the Warrant Price shall be made at the option of the
holder by cash, wire transfer to an account in a bank located in the United
States designated for such purpose by the Company, or certified or official bank
check, or by transfer to the Company of shares of Series B Preferred Stock or
Series C Preferred Stock, or any combination thereof. In the event of the
application shares of Series B Preferred Stock or Series C Preferred Stock to
the payment of the Warrant Price, the amount to be credited to the payment of
the Warrant Price shall be the Initial Stated Value per share, in the case of
any such application prior to the consummation of the
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Recapitalization, or the Post-Recapitalization Stated Value per share, in the
case of any such application after the consummation of the Recapitalization, in
each case, plus an amount per share equal to all accrued and unpaid dividends
thereon, whether or not declared, to the date of such exercise, provided that no
such credit shall be made with respect to any such dividends if the holder of
such shares held such shares on the record date therefor.
Section 2.2. Payment of Taxes. The Company shall pay all expenses
in connection with, and all taxes and other governmental charges that may be
imposed with respect to, the issue or delivery of the Warrant Shares, unless
such tax or charge is imposed by law upon the holder, in which case such taxes
or charges shall be paid by the holder. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for shares of Common Stock issuable
upon exercise of this Warrant in any name other than that of the holder, and in
such case the Company shall not be required to issue or deliver any stock
certificate until such tax or other charge has been paid or it has been
established to the satisfaction of the Company that no such tax or other charge
is due.
Section 2.3. Fractional Shares. The Company shall not be required
to issue a fractional share of Common Stock upon exercise of this Warrant. As to
any fraction of a share which the holder of this Warrant would otherwise be
entitled to purchase upon such exercise, the Company shall pay a cash adjustment
in respect of such final fraction in an amount equal to the same fraction of the
Current Market Price per share of Common Stock on the date of exercise.
ARTICLE 3.
TRANSFER, DIVISION AND COMBINATION
----------------------------------
Section 3.1. Transfer. Subject to compliance with Section 8,
transfer of this Warrant and all rights hereunder, in whole or in part, shall be
registered on the books of the Company to be maintained for such purpose, upon
surrender of this Warrant at the principal office of the Company referred to in
Section 2.1 or the office or agency designated by the Company pursuant to
Section 11, together with a written assignment of this Warrant substantially in
the form of Exhibit B hereto duly executed by the holder or its agent or
attorney and funds sufficient to pay any transfer taxes payable upon the making
of such transfer. Upon such surrender and, if required, such payment, the
Company shall, subject to Section 8, execute and deliver a new Warrant or
Warrants in the name(s) of the assignee or assignees and in the denomination(s)
specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be canceled. A Warrant, if properly assigned in
compliance with Section 8, may be exercised by a new holder for the purchase of
shares of Common Stock without having a new Warrant issued.
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Section 3.2. Division and Combination. Subject to Section 8, this
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the holder or its agent or attorney. Subject to compliance with
Section 3.1 and with Section 8, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
Section 3.3. Expenses. The Company shall prepare, issue and
deliver at its own expense (other than transfer taxes) the new Warrant or
Warrants under this Section 3.
Section 3.4. Maintenance of Books. The Company agrees to
maintain, at its aforesaid office or agency, books for the registration and the
registration of transfer of the Warrants.
ARTICLE 4.
ADJUSTMENTS
-----------
The number of shares of Common Stock for which this Warrant is
exercisable, or the price at which such shares may be purchased upon exercise of
this Warrant, shall be subject to adjustment from time to time as set forth in
this Section 4. The Company shall give the holder notice of any event described
below which requires an adjustment pursuant to this Section 4 at the time of
such event.
Section 4.1. Stock Dividends, Subdivisions, Combinations and
Reclassifications. If the Company shall at any time or from time to time after
the Issue Date:
(a) pay a dividend or make a distribution, on the outstanding
shares of Common Stock in Additional Shares of Common Stock,
(b) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock,
(c) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, or
(d) issue by reclassification of its shares of Common Stock any
shares of capital stock of the Company,
then, and in each such case, the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby immediately prior to such event or the
record date therefor, whichever is earlier, shall be adjusted so that the holder
of any Warrant evidenced hereby thereafter exercised shall be entitled to
receive the number of shares of Common Stock or other
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securities of the Company which such holder would have owned or have been
entitled to receive after the happening of any of the events described above,
had such Warrant been exercised immediately prior to the happening of such event
or the record date therefor, whichever is earlier. An adjustment made pursuant
to this Section 4.1 shall become effective (x) in the case of any such dividend
or distribution, immediately after the close of business on the record date for
the determination of holders of shares of Common Stock entitled to receive such
dividend or distribution, or (y) in the case of any such subdivision,
reclassification or combination, at the close of business on the day upon which
such corporate action becomes effective.
Section 4.2. Issuance of Additional Shares of Common Stock or
Convertible Securities. In the case the Corporation shall, after the Issue Date,
issue or sell:
(a) Additional Shares of Common Stock at a price per share, or
(b) Convertible Securities having a Conversion Price per share,
less than the Current Market Price (for a period of 15 consecutive Trading Days
prior to such date), then, and in each such case, the number of shares of Common
Stock issuable upon exercise of the Warrants evidenced hereby shall be adjusted
so that the holder of each Warrant evidenced hereby shall be entitled to
receive, upon the exercise thereof, the number of shares of Common Stock
determined by multiplying (A) the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby on the day immediately prior to such
date by (B) a fraction, the numerator of which shall be the sum of (1) the
number of shares of Common Stock outstanding on the date on which such shares or
Convertible Securities are issued and (2) the number of Additional Shares of
Common Stock issued, or into which the Convertible Securities may convert, and
the denominator of which shall be the sum of (x) the number of shares of Common
Stock outstanding on such date and (y) the number of shares of Common Stock
which the aggregate consideration receivable by the Company for the total number
of shares of Common Stock so issued, or the number of shares of Common Stock
which the aggregate of the Conversion Price of such Convertible Securities so
issued, would purchase at the Current Market Price on such date.
An adjustment made pursuant to this Section 4.2 shall be made on
the next Business Day following the date on which any such issuance is made and
shall be effective retroactively immediately after the close of business on such
date. For purposes of this Section 4.2, the aggregate consideration receivable
by the Company in connection with the issuance of any securities shall be deemed
to be the sum of the aggregate offering price to the public (before deduction of
underwriting
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discounts or commissions and expenses payable to third parties), and the
"Conversion Price" of any Convertible Securities is the total amount received or
receivable by the Company as consideration for the issue or sale of such
Convertible Securities (before deduction of underwriting discounts or
commissions and expenses payable to third parties) plus the minimum aggregate
amount of additional consideration, if any, payable to the Corporation upon the
conversion, exchange or exercise of any such Convertible Securities.
Neither (A) the issuance of any shares of Common Stock (whether
treasury shares or newly issued shares) pursuant to a dividend or distribution
on, or subdivision, combination or reclassification of, the outstanding shares
of Common Stock requiring an adjustment in the number of shares of Common Stock
issuable upon exercise of the Warrants evidenced hereby pursuant to Section 4.1,
or pursuant to any employee benefit plan or program of the Company or pursuant
to any option, warrant, right, or Convertible Security outstanding as of the
date hereof (including, but not limited to, the Rights, the Series B Preferred
Stock, the Series C Preferred Stock and the Warrants) nor (B) the issuance of
shares of Common Stock pursuant thereto shall be deemed to constitute an
issuance of Common Stock or Convertible Securities by the Company to which this
Section 4.2 applies.
Upon expiration of any Convertible Securities which shall not
have been exercised or converted and for which an adjustment shall have been
made pursuant to this Section 4.2, the Conversion Price computed upon the
original issue thereof shall upon expiration be recomputed as if the only
additional shares of Common Stock issued were such shares of Common Stock (if
any) actually issued upon exercise or conversion of such Convertible Securities
and the consideration received therefor was the consideration actually received
by the Corporation for the issue of such Convertible Securities (whether or not
exercised or converted) plus the consideration actually received by the
Corporation upon such exercise of conversion.
Section 4.3. Certain Other Distributions. In case the Company
shall at any time or from time to time after the Issue Date declare, order, pay
or make a dividend or other distribution (including, without limitation, any
distribution of stock or other securities or property or rights or warrants to
subscribe for securities of the Company or any of its Subsidiaries by way of
dividend or spin-off), on its Common Stock, other than:
(a) regular quarterly dividends payable in cash in an aggregate
amount not to exceed 15% of net income from continuing operations before
extraordinary items of the Company, determined in accordance with GAAP,
during the period (treated as one accounting period) commencing on July
1, 1998, and ending on the date such dividend is paid, or
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(b) dividends or distributions of shares of Common Stock which
are referred to in Section 4.1,
then, and in each such case, the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby shall be adjusted so that the holder
of each share of each Warrant evidenced thereby shall be entitled to receive,
upon the exercise thereof, the number of shares of Common Stock determined by
multiplying (1) the number of shares of Common Stock issuable upon exercise of
the Warrants evidenced hereby on the day immediately prior to the record date
fixed for the determination of stockholders entitled to receive such dividend or
distribution by (2) a fraction, the numerator of which shall be the then Current
Market Price per share of Common Stock for the period of 20 Trading Days
preceding such record date, and the denominator of which shall be the Current
Market Price per share of Common Stock for the period of 20 Trading Days
preceeding such record date, less the Fair Market Value per share of Common
Stock (as determined in good faith by the Board of Directors of the Company, a
certified resolution with respect to which shall be mailed to the holder of the
Warrants evidenced hereby) of such dividend or distribution; provided, however,
that in the event of a distribution of shares of capital stock of a Subsidiary
of the Company (a "Spin-Off") made to holders of shares of Common Stock, the
numerator of such fraction shall be the sum of the Current Market Price per
share of Common Stock for the period of 20 Trading Days preceding the 35th
Trading Day after the effective date of such Spin-Off and the Current Market
Price of the number of shares (or the fraction of a share) of capital stock of
the Subsidiary which is distributed in such Spin-Off in respect of one share of
Common Stock for the period of 20 Trading Days preceding such 35th Trading Day
and the denominator of which shall be the Current Market Price per share of the
Common Stock for the period of 20 Trading Days proceeding such 35th Trading Day.
An adjustment made pursuant to this Section 4.3 shall be made upon the opening
of business on the next Business Day following the date on which any such
dividend or distribution is made and shall be effective retroactively
immediately after the close of business on the record date fixed for the
determination of stockholders entitled to receive such dividend or distribution;
provided, however, if the proviso to the preceding sentence applies, then such
adjustment shall be made and be effective as of such 35th Trading Day after the
effective date of such Spin-Off.
Section 4.4. Other Provisions Applicable to Adjustments Under
This Section. The following provisions shall be applicable to the making of
adjustments provided for in this Section 4:
(a) For purposes of this Section 4, the number of shares of
Common Stock at any time outstanding shall not include any shares of
Common Stock then owned or held by or for the account of the Company.
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(b) The term "dividend", as used in this Section 4 shall mean a
dividend or other distribution upon stock of the Company except pursuant
to the Rights Agreement. Notwithstanding anything in this Section 4 to
the contrary, the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby shall not be adjusted as a
result of any dividend, distribution or issuance of securities of the
Company pursuant to the Rights Agreement.
(c) Notwithstanding anything in this Section 4 to the contrary,
the Company shall not be required to give effect to any adjustment in
the number of shares of Common Stock issuable upon exercise of the
Warrants evidenced hereby unless and until the net effect of one or more
adjustments (each of which shall be carried forward), determined as
above provided, shall have resulted in a change in the number of shares
of Common Stock issuable upon exercise of the Warrants evidenced hereby
by at least one-hundredth of one share of Common Stock, and when the
cumulative net effect of more than one adjustment so determined shall be
to change the number of shares of Common Stock issuable upon exercise of
the Warrants evidenced hereby by at least one-hundredth of one share of
Common Stock, such change in the number of shares of Common Stock
issuable upon exercise of the Warrants evidenced hereby shall thereupon
be given effect.
(d) The certificate of any firm of independent public
accountants of recognized standing selected by the Board of Directors of
the Company (which may be the firm of independent public accountants
regularly employed by the Company) shall be presumptively correct for
any computation made under this Section 4.
(e) If the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, and shall thereafter and before the distribution to
stockholders thereof legally abandon its plan to pay or deliver such
dividend or distribution, then, no adjustment in the number of shares of
Common Stock issuable upon exercise of the Warrants evidenced hereby
shall be required by reason of the taking of such record.
(f) There shall be no adjustment of the number of shares of
Common Stock issuable upon exercise of the Warrants evidenced hereby in
case of the issuance of any stock of the Company in a merger,
reorganization, acquisition or other similar transaction except as set
forth in Sections 4.1, 4.2 and 4.5.
(g) Notwithstanding anything herein to the contrary, the Company
agrees not to enter into any transaction which, by reason of any
adjustment hereunder, would cause the
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Exercise Price to be less than the par value per share of Common Stock.
(h) Upon each adjustment to the number of shares of Common Stock
issuable upon exercise of the Warrants pursuant to Sections 4.1, 4.2 or
4.3, the Exercise Price effective immediately prior to the making of
such adjustment shall thereafter be adjusted to be the amount obtained
by (i) multiplying (A) the applicable number of shares of Common Stock
issuable upon exercise of the Warrants immediately prior to such
adjustment by (B) the Exercise Price in effect immediately prior to such
adjustment and (ii) dividing the product so obtained by the number of
shares of Common Stock issuable upon exercise of the Warrants
immediately after such adjustment.
Section 4.5. Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets. In case of any reorganization or
reclassification of outstanding shares of Common Stock (other than a
reclassification covered by Section 4.1), or in case of any consolidation or
merger of the Company with or into another corporation, or in the case of any
sale or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety (each of the foregoing being referred
to as a "Transaction"), each such Warrant then outstanding shall thereafter be
exercisable for, in lieu of the Common Stock issuable upon such exercise prior
to consummation of the Transaction, the kind and amount of shares of stock and
other securities and property receivable (including cash) upon the consummation
of the Transaction by a holder of that number of shares of Common Stock issuable
upon exercise of such Warrant immediately prior to the Transaction (including,
on a pro rata basis, the cash, securities or property received by holders of
Common Stock in any tender or exchange offer that is a step in the Transaction).
Section 4.6. Notices to Warrantholders. In case at any time or
from time to time, prior to the Expiration Date, the Company shall pay any
dividend or make any other distribution to the holders of its Common Stock, or
shall offer for subscription pro rata to the holders of its Common Stock any
additional shares of stock of any class or any other right, or there shall be
any capital reorganization or reclassification of the Common Stock of the
Company or consolidation or merger of the Company with or into another
corporation, or any sale or conveyance to another corporation of the property of
the Company as an entirety or substantially as an entirety, or there shall be a
voluntary or involuntary dissolution, liquidation or winding up of the Company,
then, in any one or more of said cases the Company shall give at least 20 days'
prior written notice (the time of mailing of such notice shall be deemed to be
the time of giving thereof) to the registered holder of the Warrants evidenced
hereby at its address as shown on the books of the Company maintained by the
Transfer Agent thereof of the date on which (i) the books of the
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Company shall close or a record shall be taken for such stock dividend,
distribution or subscription rights or (ii) such reorganization,
reclassification, consolidation, merger, sale or conveyance, dissolution,
liquidation or winding up shall take place, as the case may be, provided that in
the case of any Transaction to which Section 4.5 applies the Company shall give
at least 30 days' prior written notice as aforesaid. Such notice shall also
specify the date as of which the holders of the Common Stock of record shall
participate in said dividend, distribution or subscription rights or shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale or conveyance or participate in such dissolution, liquidation or winding
up, as the case may be. Failure to give such notice shall not invalidate any
action so taken.
Section 4.7. Certificates. Upon any adjustment of the number of
shares of Common Stock issuable upon exercise of the Warrants evidenced hereby
or of the Exercise Price, then, and in each such case, the Company shall
promptly deliver to the holders of the Warrants and the Common Stock, a
certificate signed by the President or a Vice President and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company
setting forth in reasonable detail the event requiring the adjustment and the
method by which such adjustment was calculated and specifying the increased or
decreased number of shares of Common Stock issuable upon exercise of the
Warrants evidenced hereby and the Exercise Price then in effect following such
adjustment.
ARTICLE 5.
NO IMPAIRMENT
-------------
The Company shall not by any action including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of the holder of the Warrant against impairment. Without limiting the
generality of the foregoing, the Company will (a) not increase the par value of
any shares of Common Stock receivable upon the exercise of this Warrant above
the Exercise Price immediately prior to such increase in par value, (b) take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock,
free and clear of any liens, claims, encumbrances and restrictions (other than
as provided herein) upon the exercise of this Warrant, and (c) use its best
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory
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body having jurisdiction thereof as may be necessary to enable the Company to
perform its obligations under this Warrant.
Upon the request of the holder of the Warrant, the Company will
at any time during the period this Warrant is outstanding acknowledge in
writing, in form satisfactory to the holder of this Warrant, the continuing
validity of this Warrant and the obligations of the Company hereunder.
ARTICLE 6.
RESERVATION AND AUTHORIZATION OF
COMMON STOCK; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY
--------------------------------------
The Company covenants and agrees that, until the Expiration Date,
the Company shall at all times reserve and keep available for issue upon the
exercise of Warrants such number of its authorized but unissued shares of Common
Stock as will be sufficient to permit the exercise in full of all outstanding
Warrants. All shares of Common Stock which shall be so issuable, when issued
upon exercise of Warrants and payment therefor in accordance with the terms of
such Warrant, shall be duly and validly issued, fully paid and nonassessable and
free and clear of any liens, claims and restrictions (other than as provided
herein). No stockholder of the Company has or shall have any preemptive rights
to subscribe for such shares of Common Stock.
Before taking any action which would result in an adjustment in
the number of shares of Common Stock for which this Warrant is exercisable or in
the Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
ARTICLE 7.
STOCK AND WARRANT TRANSFER BOOKS
--------------------------------
The Company will not at any time, except upon dissolution,
liquidation or winding up of the Company, close its stock transfer books or
Warrant transfer books so as to result in preventing or delaying the exercise or
transfer of any Warrant.
ARTICLE 8.
RESTRICTIONS ON TRANSFERABILITY
-------------------------------
The Warrants and the Warrant Stock shall not be transferred
before satisfaction of the conditions specified in this Section 8, which
conditions are intended to ensure compliance with the provisions of the
Securities Act and state securities laws with respect to the Transfer of any
Warrant or any Warrant Stock. The holder, by acceptance of this Warrant, agrees
to be bound by the provisions of this Section 8.
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Section 8.1. Restrictive Legend.
(a) Except as otherwise provided in this Section 8, each
certificate for Warrant Stock initially issued upon the exercise of this
Warrant, and each certificate for Warrant Stock issued to any subsequent
transferee of any such certificate, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state and are subject to the conditions
specified in a certain Warrant dated [______], 1999, originally
issued by Aames Financial Corporation. The shares represented by
this certificate may not be transferred in violation of such Act
and laws, the rules and regulations thereunder or the provisions
of the Warrant. A copy of the form of said Warrant is on file
with the Secretary of Aames Financial Corporation. The holder of
this certificate, by acceptance of this certificate, agrees to be
bound by the provisions of such Warrant."
(b) Except as otherwise provided in this Section 8, each Warrant
shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"This Warrant and the securities represented hereby have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state and may not be sold or otherwise
transferred in the absence of such registration or an exemption
therefrom under such Act and under any such applicable state
laws, or in violation of the provisions of this Warrant."
Section 8.2. Transfers. Prior to any transfer or attempted
transfer of any Warrants or any shares of Restricted Common Stock, the holder of
such Warrants or Restricted Common Stock shall give notice (a "Transfer Notice")
to the Company of such holder's intention to effect such transfer, describing
the manner and circumstances of the proposed transfer, and obtain from counsel a
written opinion addressed and reasonably satisfactory to the Company that the
proposed transfer of such Warrants or such Restricted Common Stock may be
effected without registration under the Securities Act and applicable state
securities laws. After receipt of the Transfer Notice and written opinion, the
Company shall, within two Business Days thereof, so notify the holder of such
Warrants or such Restricted Common Stock and such holder shall thereupon be
entitled to transfer such warrants or such Restricted Common Stock, in
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accordance with the terms of the Transfer Notice. Each certificate, if any,
evidencing such shares of Restricted Common Stock issued upon such transfer
shall bear the restrictive legend set forth in Section 8.1(a), and each Warrant
issued upon such transfer shall bear the restrictive legend set forth in Section
8.1(b), unless in the written opinion of counsel addressed to the Company such
legend is not required in order to ensure compliance with the Securities Act.
Section 8.3. Termination of Restrictions. Notwithstanding the
foregoing provisions of Section 8, the restrictions imposed by this Section 8
upon the transferability of the Warrants, the Warrant Stock and the Restricted
Common Stock (or Common Stock issuable upon the exercise of the Warrants) and
the legend requirements of Section 8.1 shall terminate as to any particular
Warrant or share of Warrant Stock or Restricted Common Stock (or Common Stock
issuable upon the exercise of the Warrants) (i) as to the Warrant Stock and
Restricted Common Stock, when and so long as the resale of such security shall
have been effectively registered under the Securities Act and disposed of
pursuant thereto, or (ii) as to the Warrant, Warrant Stock and Restricted Common
Stock, when the holder of the Warrant, Warrant Stock or Restricted Common Stock
shall have delivered to the Company the written opinion of counsel addressed and
reasonably satisfactory to the Company stating that such legend is not required
in order to ensure compliance with the Securities Act. Whenever the restrictions
imposed by this Section shall terminate as to any share of Restricted Common
Stock, as hereinabove provided, the holder thereof shall be entitled to receive
from the Company, at the Company's expense (except for any transfer taxes), a
new certificate representing such Common Stock not bearing the restrictive
legend set forth in Section 8.1(a).
ARTICLE 9.
SUPPLYING INFORMATION
---------------------
The Company shall cooperate with the holder of the Warrant and
the holder of Restricted Common Stock in supplying such information as may be
reasonably requested by such holder or reasonably necessary for such holder to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of an exemption
from the Securities Act for the sale of any Warrant or Restricted Common Stock.
ARTICLE 10.
LOSS OR MUTILATION
------------------
Upon receipt by the Company from any holder of evidence
reasonably satisfactory to the Company of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and indemnity reasonably satisfactory
to it and in case of mutilation upon surrender and cancellation hereof, the
Company will execute
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and deliver in lieu hereof a new Warrant of like tenor to the holder; provided,
in the case of mutilation, no indemnity shall be required if this Warrant in
identifiable form is surrendered to the Company for cancellation.
ARTICLE 11.
OFFICE OF THE COMPANY
---------------------
As long as any of the Warrants remain outstanding, the Company
shall maintain an office or agency (which may be the principal executive offices
of the Company) where the Warrants may be presented for exercise, registration
of transfer, division or combination as provided in this Warrant.
ARTICLE 12.
REGISTRATION RIGHTS
-------------------
The Warrant Stock issuable upon exercise of this Warrant are
entitled to the benefits of the Registration Rights Agreement. The Company shall
keep a copy of the Registration Rights Agreement, and any amendments thereto, at
the office or agency designated by the Company pursuant to Section 11 and shall
furnish copies thereof to the holder upon request.
ARTICLE 13.
LIMITATION OF LIABILITY
-----------------------
No provision hereof, in the absence of affirmative action by the
holder to purchase shares of Common Stock, and no enumeration herein of the
rights or privileges of the holder hereof, shall give rise to any liability of
the holder for the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
ARTICLE 14.
REPRESENTATION OF HOLDER
------------------------
The holder represents that it is acquiring the Warrant and the
Warrant Stock for the purpose of investment and not with a view to the resale or
distribution hereof or thereof; provided, that the disposition of holder's
property shall at all times be and remain within its control.
ARTICLE 15.
MISCELLANEOUS
-------------
Section 15.1. Nonwaiver and Expenses. No course of dealing or any
delay or failure to exercise any right hereunder on the part of the parties
shall operate as a waiver of such right or otherwise prejudice the parties'
rights, powers or remedies. If the Company fails to comply with any provision of
this Warrant, the Company shall pay to the holder such amounts as shall be
sufficient to cover any costs and expenses including,
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but not limited to, reasonable attorneys' fees incurred by the holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
Section 15.2. No Rights As Stockholder. The Person in whose name
this Warrant is registered shall be deemed the owner hereof and of the Warrants
evidenced hereby for all purposes. The registered holder of this Warrant shall
not be entitled to any rights whatsoever as a stockholder of the Company except
as herein provided.
Section 15.3. Notice Generally. Any notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder to be
made pursuant to the provisions of this Warrant shall be sufficiently given or
made if in writing and either delivered in person with receipt acknowledged or
sent by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) If to the holder, at its last known address appearing on the
books of the Company maintained for such purpose.
(b) If to the Company:
Aames Financial Corporation
2 California Plaza
350 South Grand Avenue
Los Angeles, California 90071
Attention: Cary Thompson
Fax No.: (323) 210-4537
with a copy to:
Troop Steuber Pasich Reddick & Tobey
2029 Century Park East
Los Angeles, California 90067
Attention: C. N. Franklin Reddick, Esq.
Fax No.: (310) 728-2204
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, or three (3) Business Days after the same
shall have been deposited in the United States mail.
Section 15.4. Successors and Assigns. Subject to the provisions
of Sections 3.1 and 8, (i) this Warrant and the rights
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evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and assigns of the holder, and (ii)
the provisions of this Warrant are intended to be for the benefit of all holders
from time to time of this Warrant, and shall be enforceable by any such holders.
Section 15.5. Amendment. The Warrants may be modified or amended
or the provisions thereof waived with the written consent of the Company and the
holders of the majority of the portion of this Warrant then outstanding.
Section 15.6. Severability. Wherever possible, each provision of
this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Warrant.
Section 15.7. Headings. The headings used in this Warrant are for
the convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant.
Section 15.8. Governing Law. This Warrant shall be governed by
and construed in accordance with the laws of the State of Delaware, without
giving effect to conflicts of law principles thereof.
Section 15.10. Mutual Waiver of Jury Trial. BECAUSE DISPUTES
ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS WARRANT.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed by its authorized officer on _______________, 1998.
AAMES FINANCIAL CORPORATION
By:________________________
Name:
Title:
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<PAGE>
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for the purchase of _____ Shares of Common Stock of AAMES
FINANCIAL CORPORATION and herewith makes payment therefor, all at the price and
on the terms and conditions specified in this Warrant and requests that
certificates for the shares of Common Stock hereby purchased (and any securities
or other property issuable upon such exercise) be issued in the name of and
delivered to __________________ whose address is ____________________ and, if
such shares of Common Stock shall not include all of the shares of Common Stock
issuable as provided in this Warrant, that a new Warrant of like tenor and date
for the balance of the shares of Common Stock issuable hereunder be delivered to
the undersigned.
______________________ (Name of Registered Owner)
______________________ (Signature of Registered owner)
______________________ (Street Address)
______________________ (City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below all of
the rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
Name and Address of Assignee No. of Shares of Common Stock
- ---------------------------- -----------------------------
and does hereby irrevocably constitute and appoint ____________ attorney-in-fact
to register such transfer on the books of AAMES FINANCIAL CORPORATION maintained
for the purpose, with full power of substitution in the premises.
Dated:____________________________
Name:_____________________________
Signature:________________________
Witness:__________________________
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
Exhibit F
AAMES FINANCIAL CORPORATION
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 23, 1998,
among Capital Z Financial Services Fund II, L.P. ("Capital Z"), together with
the other investors listed on Schedule I hereto (collectively, the "Investors"),
and Aames Financial Corporation, a Delaware corporation (the "Company").
R E C I T A L S
---------------
WHEREAS, the Investors, pursuant to the terms of a Preferred
Stock Purchase Agreement, dated as of the date hereof, between Capital Z and the
Company (the "Purchase Agreement"), (i) have agreed to purchase shares of Series
B Convertible Preferred Stock, par value $0.001 per share, of the Company (the
"Series B Preferred Stock") and Series C Convertible Preferred Stock, par value
$0.001 per share, of the Company (the "Series C Preferred Stock" and, together
with the Series B Preferred Stock, the "Preferred Stock"), (ii) have received on
the date hereof warrants (the "Warrants") to purchase an aggregate of 1,250,000
shares of Common Stock, par value $0.001 per share (the "Common Stock"), of the
Company, and (iii) are to receive additional Common Stock purchase warrants (the
"Contingent Warrants" and, together with the Warrants, the "Investor Warrants")
on the Initial Closing Date (as defined in the Purchase Agreement); and
WHEREAS, the Company has agreed, as a condition precedent to
Capital Z's obligations under the Purchase Agreement to grant the Investors
certain registration rights; and
WHEREAS, the Company and the Investors desire to define the
registration rights of the Investors on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
Commission: shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act;
Conversion Shares: shall mean the shares of Common Stock for
which the Preferred Stock has been, or may be, converted.
<PAGE>
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder;
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean (a) Capital Z or (b) any Holder or
Holders of Registrable Securities aggregating at least 35% of (i) the aggregate
number of shares of Preferred Stock held by all Holders, in the case of any
registration of Preferred Stock, or (ii) the aggregate number of Conversion
Shares and Warrant Shares held by all Holders, in the case of any registration
of Conversion Shares or Warrant Shares (x) held by such Holders or (y) issued or
issuable upon conversion of the Preferred Stock or exercise of the Investor
Warrants;
Person: shall mean an individual, partnership, joint-stock
company, corporation, limited liability company, trust or unincorporated
organization, and a government or agency or political subdivision thereof;
register, registered and registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: (A) the shares of Preferred Stock issued
to the Investors pursuant to the Purchase Agreement, (B) the Warrant Shares, (C)
the Conversion Shares, (D) any additional shares of Common Stock or Preferred
Stock acquired by the Investors (but not their assignees, unless any such
assignee shall have acquired at least a number of Preferred Stock or Conversion
Shares equal to 15% of the shares of Preferred Stock or Conversion Shares
originally issued to the Investors pursuant to the Purchase Agreement, adjusted
for splits, combinations, and similar events), (E) any capital stock of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of Preferred Stock or Common Stock
referred to in clauses (A), (B), (C) or (D) above, until, in the case of any
such securities, (i) a registration statement covering such securities has been
declared effective by the Commission and such securities have been disposed of
pursuant to such effective Registration Statement or (ii) such securities have
been disposed of in open market transactions pursuant to Rule 144 under the
Securities Act (or similar rule then in effect);
Registration Expenses: shall mean (x) all expenses incurred by
the Company in compliance with Sections 2(a) and (b) hereof, excluding Selling
Expenses, but including, without limitation, all registration and filing fees,
printing expenses,
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blue sky fees and expenses and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company) and
(y) all reasonable fees and disbursements of one counsel retained by the Holders
of a majority of the Registrable Securities to be included in a particular
registration;
Security, Securities: shall have the meaning set forth in Section
2(1) of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder;
Selling Expenses: shall mean all underwriting and selling
discounts, fees and commissions applicable to the sale of Registrable
Securities; and
Warrant Shares: shall mean the shares of Common Stock for which
the Investor Warrants have been, or may be, exercised.
2. REGISTRATION RIGHTS
(a) Requested Registration.
(i) Request for Registration. If the Company shall receive
from an Initiating Holder, at any time, a written request that the
Company effect any registration with respect to all or a part of the
Registrable Securities, the Company will:
(A) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders;
and
(B) as soon as reasonably practicable, use its reasonable
best efforts to effect such registration (including, without
limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under
the Securities Act) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of
such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities
of any Holder or Holders joining in such request as are specified
in a written request received by the Company within 10 business
days after written notice from the Company is given under Section
2(a)(i)(A) above; provided that the Company shall not be
obligated to effect, or take any action to effect, any such
registration pursuant to this Section 2(a):
3
<PAGE>
(v) in any particular jurisdiction in which the
Company would be required to execute a general consent
to service of process in effecting such registration,
qualification or compliance, unless the Company is
already subject to service in such jurisdiction and
except as may be required by the Securities Act or
applicable rules or regulations thereunder;
(w) (i) with respect to a request for
registration of Warrant Shares or Conversion Shares,
after the Company has effected five (5) such
registrations pursuant to this Section 2(a) requested
by an Initiating Holder and (ii) with respect to a
request for registration of shares of Preferred Stock,
after the Company has effected five (5) such
registrations pursuant to this Section 2(a) requested
by an Initiating Holder, and, in each case, such
registrations have been declared or ordered effective
and the sales of such Registrable Securities shall have
closed;
(x) if the Registrable Securities requested by
all Holders to be registered pursuant to such request
do not have an anticipated aggregate public offering
price (before any underwriting discounts and
commissions) of at least $10,000,000;
(y) if at the time of any request to register
Registrable Securities, the Company is engaged or
intends to engage in an acquisition, financing or other
material transaction which, in the good faith
determination of the Board of Directors of the Company,
would be adversely affected by the requested
registration to the material detriment of the Company,
or the Board of Directors of the Company determines in
good faith that the registration would require the
disclosure of material information that the Company has
a bona fide business purpose for preserving as
confidential, and that the Company is not otherwise
required by applicable securities laws or regulations
to disclose, in which event, the Company may, at its
option, direct that such request be delayed for a
period not in excess of ninety days from the date of
the determination by the Board of Directors, as the
case may be, such right to delay a request to be
exercised by the Company not more than once in any
twelve-month period; or
(z) with respect to Holders who are officers,
directors or employees of the Company, if at the time
of any request to register Registrable Securities,
directors, officers, or employees of the
4
<PAGE>
Company are not permitted to offer or sell
securities in accordance with the Company's policies.
The registration statement filed pursuant to the request of an
Initiating Holder may, subject to the provisions of Section 2(a)(ii)
below, include other securities, other than Registrable Securities, of
the Company which are held by the other stockholders ("Other
Stockholders") of the Company.
The Holders holding a majority of the Registrable Securities
requested to be registered may, at any time prior to the effective
date of the registration statement relating to such registration,
revoke such request, without liability to the Company, such Holders,
any of the other Holders or the Other Stockholders, by providing a
written notice to the Company revoking such request, provided that
such revoked request shall count against the registrations available
to the Holders pursuant to Section 2(a)(x) unless such Holders pay the
costs and expenses associated with such revoked request.
Notwithstanding the foregoing provisions of this Section 2(a)(i),
if the Initial Closing (as defined in the Purchase Agreement) does not
take place for any reason whatsoever, the holder or holders of a
majority of the Warrants shall be entitled to one demand registration
right with respect to the Warrant Shares, subject to the other
provisions of this Agreement.
(ii) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means
of an underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 2(a). If shares held by Other
Stockholders are requested by such Other Stockholders to be included in
any registration pursuant to this Section 2, the Company shall condition
such inclusion on their acceptance of the further applicable provisions
of this Section 2. The Initiating Holders whose Registrable Securities
are to be included in such registration and the Company shall (together
with all Other Stockholders proposing to distribute their securities
through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or
underwriters selected for such underwriting by such Initiating Holders
and reasonably acceptable to the Company. Notwithstanding any other
provision of this Section 2(a), if the representative advises the
Holders in writing that marketing factors (including, without
limitation, pricing considerations) require a limitation on the number
of shares to be underwritten or a limitation on the inclusion of shares
held by directors and officers of the Company, the securities of the
Company held by Other Stockholders shall be excluded from such
registration to the extent so required by such limitation. If, after the
exclusion of such shares, further reductions are still
5
<PAGE>
required, the Registrable Securities of the Company held by each Holder
other than the Initiating Holders shall be excluded from such
registration to the extent so required by such limitation. Thereafter,
if still further reductions are required, the number of Registrable
Securities included in the registration by each Initiating Holder shall
be reduced on a pro rata basis (based on the number of Registrable
Securities held by such Initiating Holder), by such minimum number of
Registrable Securities as is necessary to comply with such request. No
Registrable Securities or any other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall
be included in such registration. If any Other Stockholder who has
requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the
Initiating Holders. The securities so withdrawn shall also be withdrawn
from registration. If the underwriter has not limited the number of
Registrable Securities or other securities to be underwritten, the
Company and officers and directors of the Company (including
representatives and designees of Capital Z or the Series B Preferred
Stock holders) may include its or their securities for its or their own
account in such registration if the representative so agrees and if the
number of Registrable Securities and other securities which would
otherwise have been included in such registration and underwriting will
not thereby be limited.
(iii) Other Registration Rights. The Company shall not
grant any registration rights inconsistent with the provisions of this
Section 2(a) and in granting any demand registration rights hereafter
shall provide that the Holders shall have the right to notice of the
exercise of any such demand registration right and to participate in
such registration on a pro rata basis.
(b) Company Registration.
(i) If the Company shall determine to register any of its
equity securities either for its own account or any Other Stockholders,
other than a registration relating solely to employee benefit plans, or
a registration relating solely to a Commission Rule 145 transaction, or
a registration on any registration form which does not permit secondary
sales or does not include substantially the same information as would be
required to be included in a registration statement covering the sale of
Registrable Securities, the Company will:
(A) promptly give to each of the Holders a written notice
thereof; and
6
<PAGE>
(B) include in such registration (and any related
qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by the Holders
within fifteen (15) days after receipt of the written notice from
the Company described in clause (A) above, except as set forth in
Section 2(b)(ii) below.
The Company may terminate, in its sole and absolute discretion, any
registration described in this Section 2(b) at any time prior to the
effectiveness of the applicable registration statement. Upon such
termination, the Company's obligations under this Section 2(b) with
respect to such terminated registration shall terminate.
(ii) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise each of the Holders as a part
of the written notice given pursuant to Section 2(b)(i)(A). In such
event, the right of each of the Holders to registration pursuant to this
Section 2(b) shall be conditioned upon such Holders' participation in
such underwriting and the inclusion of such Holders' Registrable
Securities in the underwriting to the extent provided herein. The
Holders whose shares are to be included in such registration shall
(together with the Company and the Other Stockholders distributing their
securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the underwriter
or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 2(b), if the
representative determines that marketing factors require a limitation on
the number of shares to be underwritten or a limitation on the inclusion
of shares held by directors and officers of the Company, the
representative may (subject to the allocation priority set forth below)
limit the number of Registrable Securities to be included in the
registration and underwriting to not less than twenty five percent (25%)
of the total number of shares to be included in such underwritten
offering, subject to the Company's compliance with any registration
obligations to any Demanding Holders (as hereinafter defined)
participating in such registration. The Company shall so advise all
holders of securities requesting registration, and the number of shares
of securities that are entitled to be included in the registration and
underwriting shall be allocated in the following manner: The securities
of the Company held by officers, directors (including representatives
and designees of Capital Z or the Series B Preferred Stock holders) and
Other Stockholders (other than Registrable Securities and other than
securities held by holders who by contractual
7
<PAGE>
right demanded such registration ("Demanding Holders")) shall be
excluded from such registration and underwriting to the extent required
by such limitation, and, if a limitation on the number of shares is
still required, the number of shares that may be included in the
registration and underwriting by each of the Holders other than the
Demanding Holders shall be excluded from such registration to the extent
so required by such limitation. Thereafter, if still further reductions
are required, the number of shares included in the registration by each
of the Demanding Holders shall be reduced, on a pro rata basis (based on
the number of shares held by such Demanding Holders), by such minimum
number of shares as is necessary to comply with such limitation. If any
of the Holders or any officer, director or Other Stockholder disapproves
of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to the Company and the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration.
(iii) Number and Transferability. Each of the Holders shall
be entitled to have its shares included in an unlimited number of
registrations pursuant to this Section 2(b).
(c) Shelf Registration.
(i) If requested by the Initiating Holder at any time
after the date hereof, the Company shall file a "shelf" registration
statement pursuant to Rule 415 (if then available) under the Securities
Act (the "Shelf Registration") with respect to the resale of all or any
portion of the Registrable Securities, as requested by the Initiating
Holder. If such request is made, the Company shall (A) use its
reasonable best efforts to have the Shelf Registration declared
effective as promptly as practicable and (B) use its reasonable best
efforts to keep the Shelf Registration continuously effective from the
date such Shelf Registration is declared effective until the date
specified in Section 2(i) in order to permit the prospectus forming a
part thereof to be usable by Holders during such period. The Shelf
Registration may not include other securities of the Company which are
held by Other Stockholders.
(ii) The Company shall supplement or amend the Shelf
Registration, (A) as required by the registration form utilized by the
Company or by the instructions applicable to such registration form or
by the Securities Act or the rules and regulations promulgated
thereunder, (B) to include in such Shelf Registration any additional
securities that become Registrable Securities by operation of the
definition thereof and (C) following the written request of an
Initiating Holder pursuant to Section 2(c)(iii) below, to cover offers
and sales of all or a part of the Registrable
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<PAGE>
Securities by means of an underwriting including the incorporation of
any information required pursuant to Section 2(e)(x) below. The Company
shall furnish to the Holders of the Registrable Securities to which the
Shelf Registration relates copies of any such supplement or amendment
sufficiently in advance (but in no event less than five business days in
advance) of its use and/or filing with the Commission to allow the
Holders a meaningful opportunity to comment thereon.
(iii) The Holders may, at their election and upon written
notice by the Initiating Holders to the Company, effect offers and sales
under the Shelf Registration by means of one or more underwritten
offerings, in which case the provisions of Section 2(a)(ii) above shall
apply to any such underwritten distribution of securities under the
Shelf Registration and such underwriting shall, if sales of Registrable
Securities pursuant thereto shall have closed, be regarded as the
exercise of one of the registration rights contemplated by Section 2(a)
hereof.
(iv) The rights of the Holders to request and effect a Shelf
Registration hereunder and the Company's obligations to keep a Shelf
Registration effective shall be subject to the restrictions and
limitations set forth in Section 2(a)(x), (y) and (z).
(d) Expenses of Registration. All Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
this Section 2 (including all Registration Expenses incurred in connection with
the Shelf Registration and any supplements or amendments thereto, whether or not
it becomes effective, and whether all, none or some of the Registrable
Securities are sold pursuant to the Shelf Registration) shall be borne by the
Company, and all Selling Expenses shall be borne by the Holders of the
securities so registered pro rata on the basis of the number of their shares so
registered; provided, however, that if, as a result of the withdrawal of a
request for registration by any of the Holders, as applicable, the registration
statement does not become effective, the Holders and Other Stockholders
requesting registration may elect to bear the Registration Expenses (pro rata on
the basis of the number of their shares so included in the registration request,
or on such other basis as such Holders and Other Stockholders may agree), in
which case such registration shall not be counted as a registration pursuant to
Section 2(a)(i)(B)(x).
(e) Registration Procedures. In the case of each registration
effected by the Company pursuant to this Section 2, the Company will keep the
Holders holding Registrable Securities requested to be included in such
registration ("Participating Holders") advised in writing as to the initiation
of each
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<PAGE>
registration and as to the completion thereof. At its expense, the Company will:
(i) other than the Shelf Registration, the obligations in
respect of which are set forth in Section 2(c)(i)(B) above, keep such
registration effective for a period of one hundred eighty (180) days or
until the Participating Holders, as applicable, have completed the
distribution described in the registration statement relating thereto,
whichever first occurs;
(ii) furnish to each Participating Holder, and to any
underwriter before filing with the Commission, copies of any
registration statement (including all exhibits) and any prospectus
forming a part thereof and any amendments and supplements thereto
(including, upon request, all documents incorporated or deemed
incorporated by reference therein) prior to the effectiveness of such
registration statement and including each preliminary prospectus, any
summary prospectus or any term sheet (as such term is used in Rule 434
under the Securities Act)) and any other prospectus filed under Rule 424
under the Securities Act, which documents, other than exhibits and
documents incorporated or deemed incorporated by reference, will be
subject the review of the Participating Holders and any such underwriter
for a period of at least five business days, and the Company shall not
file any such registration statement or such prospectus or any amendment
or supplement to such registration statement or prospectus to which any
Participating Holder or any such underwriter shall reasonably object
within five business days after the receipt thereof; a Participating
Holder or such underwriter(s), if any, shall be deemed to have
reasonably objected to such filing only if the registration statement,
amendment, prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(iii) furnish to each Participating Holder and to any
underwriter, such number of conformed copies of the applicable
registration statement and of each amendment and supplement thereto (in
each case including all exhibits) and such number of copies of the
prospectus forming a part of such registration statement (including each
preliminary prospectus, any summary prospectus or any term sheet (as
such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents,
including without limitation documents incorporated or deemed to be
incorporated by reference prior to the effectiveness of such
registration, as each of the Participating Holders or any such
underwriter, from time to time may reasonably request;
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<PAGE>
(iv) to the extent practicable, promptly prior to the filing
of any document that is to be incorporated by reference into any
registration statement or prospectus forming a part thereof subsequent
to the effectiveness thereof, and in any event no later than the date
such document is filed with the Commission, provide copies of such
document to the Participating Holders, if requested, and to any
underwriter, make representatives of the Company available for
discussion of such document and other customary due diligence matters;
(v) make available at reasonable times for inspection by
the Participating Holders, any underwriter participating in any
disposition pursuant to such registration and any attorney or accountant
retained by the Holders or any such underwriter, all financial and other
records, pertinent corporate documents and properties of the Company and
cause the officers, directors and employees of the Company to supply all
information reasonably requested by the Participating Holders and any
such underwriters, attorneys or accountants in connection with such
registration subsequent to the filing of the applicable registration
statement and prior to the effectiveness of the applicable registration
statement, subject to the execution of a customary confidentiality
agreement;
(vi) use its reasonable best efforts (x) to register or
qualify all Registrable Securities and other securities covered by such
registration under such other securities or blue sky laws of such States
of the United States of America where an exemption is not available and
as the sellers of Registrable Securities covered by such registration
shall reasonably request, (y) to keep such registration or qualification
in effect for so long as the applicable registration statement remains
in effect, and (z) to take any other action which may be reasonably
necessary or advisable to enable such sellers to consummate the
disposition in such jurisdictions of the securities to be sold by such
sellers, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in
any jurisdiction where it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to execute a general consent to
service of process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder;
(vii) use its reasonable best efforts to cause all
Registrable Securities covered by such registration statement to be
registered with or approved by such other federal or state governmental
agencies or authorities as may be necessary in the opinion of counsel to
the Company and
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<PAGE>
counsel to the Participating Holders of Registrable Securities to enable
the Holders thereof to consummate the disposition of such Registrable
Securities in accordance with the plan of distribution described in the
applicable registration statement;
(viii) subject to Section 2(i) hereof, promptly notify each
Holder of Registrable Securities covered by a registration statement (A)
upon discovery that, or upon the happening of any event as a result of
which, the prospectus forming a part of such registration statement, as
then in effect, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, (B) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of proceedings for that
purpose, (C) of any request by the Commission for (1) amendments to such
registration statement or any document incorporated or deemed to be
incorporated by reference in any such registration statement, (2)
supplements to the prospectus forming a part of such registration
statement or (3) additional information, (D) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, and at the request of any such Holder
promptly prepare and furnish to it a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ix) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of any such registration, or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction;
(x) if requested by a Participating Holder, or any
underwriter, subject to receipt of any required information from such
Holder or underwriter, promptly incorporate in such registration
statement or prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as the Participating Holder and
any underwriter may reasonably request to have included therein,
including, without limitation, information relating to the "plan of
distribution" of the Registrable Securities, information with respect to
the number of shares of
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Registrable Securities being sold to such underwriter, the
purchase price being paid therefor and any other terms of the offering
of the Registrable Securities to be sold in such offering and make all
required filings of any such prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to the Participating Holders, addressed to them,
an opinion of counsel for the Company, dated the date of the closing
under the underwriting agreement, if any, or the date of effectiveness
of the registration statement if such registration is not an
underwritten offering, and use its reasonable best efforts to furnish to
the Participating Holders, addressed to them, a "cold comfort" letter
signed by the independent certified public accountants who have
certified the Company's financial statements included in such
registration, covering substantially the same matters with respect to
such registration (and the prospectus included therein) and, in the case
of such accountants' letter, with respect to events subsequent to the
date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and such
other matters as the Participating Holders may reasonably request;
(xii) provide promptly to the Participating Holders upon
request any document filed by the Company with the Commission pursuant
to the requirements of Section 13 and Section 15 of the Exchange Act;
and
(xiii) use its reasonable best efforts to cause all
Registrable Securities included in any registration pursuant hereto to
be listed on each securities exchange on which securities of the same
class are then listed or, if not then listed on any securities exchange,
to be eligible for trading in any over-the-counter market or trading
system in which securities of the same class are then traded.
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each
person controlling each of the Holders (within the meaning of the
Securities Act), with respect to each registration which has been
effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any preliminary, final or summary prospectus,
offering circular
13
<PAGE>
or other document (including any related registration statement,
notification or the like, or any amendment or supplement to any of the
foregoing) incident to any such registration, qualification or
compliance, or based on 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 any violation (or alleged
violation) by the Company of the Securities Act or the Exchange Act or
any rule or regulation thereunder or of any applicable state or common
law applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration,
qualification or compliance, and (subject to Section 2(f)(iii)) will
reimburse each of the Holders, each of its officers, directors and
partners, and each person controlling each of the Holders, each such
underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to
the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission based upon
and in conformity with written information furnished to the Company by
the Holders or underwriter and stated to be specifically for use
therein. The foregoing indemnification shall remain in effect regardless
of any investigation by any indemnified party and shall survive any
transfer or assignment by a Holder of its Registrable Securities or of
its rights pursuant to this Agreement.
(ii) Each of the Holders will, if Registrable Securities held
by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify on a several,
but not joint basis, the Company, each of its directors and officers and
each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such
underwriter, each Other Stockholder and each of their officers,
directors, and partners, and each person controlling such Other
Stockholder against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) made by such Holder of a
material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged
omission) made by such Holder to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such directors, officers,
partners, persons, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each
case to the
14
<PAGE>
extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document
in reliance upon and in conformity with written information furnished to
the Company by such Holder and stated to be specifically for use
therein; provided, however, that the obligations of each of the Holders
hereunder shall be limited to an amount equal to the net proceeds to
such Holder of securities sold pursuant to such registration statement
or prospectus.
(iii) Each party entitled to indemnification under this
Section 2(f) (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party
to assume the defense of any such claim or any litigation resulting
therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting therefrom,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in
such defense at such party's expense (unless the Indemnified Party shall
have reasonably concluded upon advice from counsel that there may be a
conflict of interest between the Indemnifying Party and the Indemnified
Party in such action, in which case the reasonable fees and expenses of
one firm of counsel (and one local counsel) shall be at the expense of
the Indemnifying Party), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 2 except to
the extent the Indemnifying Party is materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party, consent to
entry of 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. Each Indemnified Party shall
promptly furnish such information regarding itself or the claim in
question as an Indemnifying Party may reasonably request in writing and
as shall be reasonably required in connection with the defense of such
claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f)
is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result
15
<PAGE>
of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party
on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss, liability,
claim, damage or expense, as well as any other relevant equitable
considerations, 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 any such fraudulent misrepresentation. The relative fault of
the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue (or alleged
untrue) statement of a material fact or the omission (or alleged
omission) to state a material fact relates to information supplied by
the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding the
foregoing, no Holder will be required to contribute any amount pursuant
to this paragraph (f) in excess of the total price at which the
Registrable Securities of such Holder were offered to the public (less
underwriting discounts and commissions, if any). Each Holder's
obligations to contribute pursuant to this paragraph are several in the
proportion that the proceeds of the offering received by such Holder
bears to the total proceeds of the offering received by all the
applicable Holders and not joint.
(v) The foregoing indemnity agreement of the Company and
Holders is subject to the condition that, insofar as they relate to any
loss, claim, liability or damage made in a prospectus, preliminary
prospectus or other offering document but eliminated or remedied in an
amended prospectus, preliminary prospectus or other offering document
delivered to an underwriter or Holder, as applicable (the "Final
Prospectus"), such indemnity agreement shall not inure to the benefit of
(A) any underwriter if a copy of the Final Prospectus was furnished to
the underwriter and was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is
required by the Securities Act or (B) in circumstances where no
underwriter is acting as such in the offer and sale in question, any
Holder who (1) either directly or through its agent provided the
preliminary prospectus to the Person asserting the loss, liability,
claim or damage, (2) was furnished with a copy of the Final Prospectus,
and (3) did not furnish or cause to be furnished the Final Prospectus to
the Person asserting the loss, liability, claim or damage at or prior to
the time such action is required by the Securities Act.
16
<PAGE>
(vi) Any indemnification payments required to be made to an
Indemnified Party under this Section 2(f) shall be made as the related
claims, losses, damages, liabilities or expenses are incurred.
(g) Information by the Holders. Each of the Holders holding
securities included in any registration shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Section 2. No Investor shall be required, in connection with
any underwriting agreements entered into in connection with any registration, to
provide any information, representations or warranties, or covenants with
respect to the Company, its business or its operations, and such Investors shall
not be required to provide any indemnification with respect to any registration
statement except as specifically provided for in Section 2(f)(ii) hereof.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times;
(ii) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 and of
the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as the Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing the Holder
to sell any such securities without registration.
(i) Termination. The registration rights set forth in this
Section 2 shall not be available to any Holder if, in the opinion of counsel to
the Company, all of the Registrable Securities then owned by such Holder could
be sold in any 90-day period pursuant to Rule 144 (without giving effect to the
provisions of Rule 144(k)) or at such time that no Registrable Securities are
outstanding. The Company will arrange for a
17
<PAGE>
provision to the transfer agent for such shares of an opinion of counsel in
connection with any such sale under Rule 144.
(j) Assignment. The registration rights set forth in Section 2
hereof may be assigned, in whole or in part, to any transferee of Registrable
Securities (who shall be considered thereafter to be a Holder and shall be bound
by all obligations and limitations of this Agreement).
(k) The Holders agree that, upon receipt of any notice from the
Company pursuant to Section 2(e)(viii), they shall immediately discontinue the
disposition of Registrable Securities pursuant to the registration statement
applicable to such Registrable Securities until they have received copies of the
amended or supplemented prospectus as described in Section 2(e)(viii). The
Holders shall destroy all copies in their possession of the registration
statement and related materials covering such Registrable Securities at the time
of receipt of the Company's notice.
3. MISCELLANEOUS
(a) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed entirely within such State.
(c) Section Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
(d) Notices.
(i) All communications under this Agreement shall be in
writing and shall be delivered by hand or by facsimile or mailed by
overnight courier or by registered or certified mail, postage prepaid:
(A) if to the Company, to Aames Financial Corporation,
2 California Plaza, 350 South Grand Avenue, Los Angeles,
California 90071, facsimile no. (323) 210-4537 or at such other
address or facsimile number as it may have furnished in writing
to the Investors;
(B) if to the Investors, at the address or facsimile
number listed on Schedule I hereto, or at
18
<PAGE>
such other address or facsimile number as may have been
furnished in writing to the Company.
(ii) Any notice so addressed shall be deemed to be given:
if delivered by hand or facsimile, on the date of such delivery; if
mailed by courier, on the first business day following the date of such
mailing; and if mailed by registered or certified mail, on the third
business day after the date of such mailing.
(e) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the parties
hereto by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and the parties hereto may destroy any
original document so reproduced. The parties hereto agree and stipulate that any
such reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by the Investors in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(g) Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto and supersedes all
prior understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Investors holding a majority of the then
outstanding Registrable Securities.
(h) Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not effect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
19
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first set forth above.
AAMES FINANCIAL CORPORATION
By:_________________________
Name: ___________________
Title: _________________
INVESTORS:
CAPITAL Z FINANCIAL SERVICES FUND II,
L.P.,
By its General Partner
CAPITAL Z PARTNERS, L.P.,
By its General Partner
CAPITAL Z PARTNERS, LTD.
By:_____________________
Name:
Title:
CAPITAL Z MANAGEMENT, INC.
By:___________________________
Name: _____________________
Title: ___________________
20
<PAGE>
SCHEDULE I
Name and Address of Investors:
- ------------------------------
Capital Z Financial Services Fund, L.P.
One Chase Manhattan Plaza
New York, New York 10005
Attention: David Spuria, Esq.
Capital Z Management Inc.
One Chase Manhattan Plaza
New York, New York 10005
Attention: David Spuria, Esq.
This schedule will be amended to include (i) Designated Purchasers under the
Preferred Stock Purchase Agreement and (ii) the designees of Capital Z who will
receive any of the Warrants.
<PAGE>
EXHIBIT G
Terms of Management Services Agreement
--------------------------------------
Parties: The Company and Equifin.
Services to be Provided: Equifin will provide the Company with consulting
services regarding business performance
improvements, cost reduction programs and quality
initiatives to be implemented by the Company,
general transactional advice and other services
(subject to mutual agreement as to scope and
compensation).
Compensation: $250,000 per quarter, with quarterly installments
payable in advance on January 15, April 15, July
15 and October 15 of each year of the agreement,
except that the first quarterly installment shall
be paid on the Initial Closing Date (pro rated for
the balance of the quarterly period in which the
Initial Closing Date occurs).
Expenses; Indemnification: Equifin will be entitled to periodic reimbursement
of all reasonable out-of-pocket expenses incurred
in performing the services to be performed under
the agreement. In addition, Equifin (and its
officers, employees, affiliates and controlling
persons) will have indemnification rights with
respect to all claims asserted against any of them
arising out of the performance of the services to
be performed by Equifin under the agreement.
Terms: Five years, subject to renewal thereafter by
mutual agreement. Early termination rights will
apply if Equifin professionals spend, in the
aggregate, less than 480 hours per contract year
performing services for the Company.
Other Terms: Other customary terms to be agreed upon.
<PAGE>
Exhibit H
MANAGEMENT VOTING AGREEMENT
MANAGEMENT VOTING AGREEMENT dated as of December 23, 1998, among Capital Z
Financial Services Fund II, L.P., a Bermuda limited partnership ("Capital Z"),
and Cary Thompson and Neil Kornswiet (collectively, the "Shareholders").
WHEREAS, the Shareholders desire that the Aames Financial Corporation, a
Delaware corporation (the "Company"), and Capital Z enter into a Preferred Stock
Purchase Agreement dated as of the date hereof (as the same may be amended from
time to time, the "Purchase Agreement"), which provides, among other things,
that Capital Z, together with certain Capital Z affiliates and co-investors as
provided therein, will purchase shares of the Company's Series B Convertible
Preferred Stock, par value $0.001 per share ("Series B Preferred Stock") and
Series C Convertible Preferred Stock, par value $0.001 per share ("Series C
Preferred Stock," and, together with the Series B Preferred Stock, "Senior
Preferred Stock"), in the amounts and subject to the conditions set forth in the
Purchase Agreement; and
WHEREAS, the Shareholders are executing this Agreement as an inducement to
the Company and Capital Z to execute and deliver the Purchase Agreement.
NOW THEREFORE, in consideration of the execution and delivery by the
Company and Capital Z of the Purchase Agreement and the mutual covenants,
conditions and agreements contained therein and herein, the parties hereto agree
as follows:
SECTION 1. Representations and Warranties. Each of the Shareholders
severally and not jointly represents and warrants to the Company and Capital Z
as to himself (and not as to any other Shareholder) as follows:
(a) Such Shareholder is the record and beneficial owner of the number of
shares of the Company's common stock, par value $0.001 per share ("Common
Stock") (together with any shares of Common Stock or other voting securities of
the Company, including, without limitation, Senior Preferred Stock, with respect
to which the Shareholder obtains voting power after the date hereof, the
"Shares"), as set forth on hereto (which Exhibit shall be amended
after the date hereof to include any voting securities of the Company with
respect to which the Shareholder obtains voting power after the date hereof).
Except for such number of Shares and except for Shares, if any, (i) issuable in
connection with options outstanding as of the date hereof or (ii) which such
Shareholder has agreed to purchase in connection with the transactions
contemplated by the Purchase
<PAGE>
Agreement, such Shareholder is not the record or beneficial owner of any
shares of Common Stock.
(b) Such Shareholder has the authority to execute, deliver and perform this
Agreement without the necessity of obtaining any third party consent, approval,
authorization or waiver, or giving of any notice or otherwise, except for such
consents as have been obtained, are unconditional and are in full force and
effect.
(c) This Agreement has been duly executed and delivered by such Shareholder
and, assuming due execution and delivery thereof by the Company and Capital Z,
constitutes the legal, valid, and binding obligation of such Shareholder
enforceable against the Shareholder in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
enforcement is sought by proceedings in equity or at law).
(d) The execution, delivery, and performance of this Agreement by such
Shareholder will not (i) result in the breach of or constitute a default under
any contract to which such Shareholder is subject, (ii) constitute a violation
of any Law applicable or relating to such Shareholder or (iii) result in the
creation of any Lien.
(e) Except for this Agreement, there are no voting trusts or other
agreements or understandings, including, without limitation, any proxies, in
effect governing the voting of the Shares.
(f) Such Shareholder does not hold, and has not issued, any proxies, or
securities convertible into or exchangeable for or any options, warrants, or
other rights to purchase or subscribe for any shares of Common Stock.
(g) The Shares and the certificates representing such Shares are now and
until the earlier to occur of June 30, 1999 and consummation of the
Recapitalization will be held by such Shareholder, or by a nominee or custodian
for the benefit of such Shareholder, free and clear of all Liens, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever other than as created by this Agreement.
(h) Such Shareholder understands and acknowledges that the Company and
Capital Z are entering into the Purchase Agreement in reliance upon such
Shareholder's execution and delivery of this Agreement.
(i) There are no undertakings, agreements, arrangements or understandings
of the type required to be disclosed by the Company pursuant to Item 404 of
Regulation S-K
<PAGE>
under the Securities Act in filings by the Company with the Securities and
Exchange Commission in effect between such Shareholder, or any of his or her
affiliates, on the one hand, and the Company or any of its subsidiaries, on the
other hand, which have not been fully and completely disclosed, in writing, to
Capital Z.
SECTION 2. Voting Agreement. Each Shareholder agrees with, and covenants
to, Capital Z as follows:
(a) At the Shareholders' Meeting or at any adjournment thereof or in
any other circumstances upon which a vote, consent or other approval will
be held or solicited with respect to the increase of the authorized capital
stock of the Company as contemplated by the Purchase Agreement (the
"Charter Amendment"), such Shareholder shall vote (or cause to be voted) or
shall consent, execute a consent or cause to be executed a consent in
respect of the Shares in favor of the Charter Amendment and the Stock
Split.
(b) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought while the Purchase Agreement remains in
effect, such Shareholder shall vote (or cause to be voted) the Shares
against (i) any Alternative Transaction or any action which is a component
of any Alternative Transaction or would be a component of an Alternative
Transaction if it were contained in a proposal, or (ii) any other matter
submitted to the shareholders of the Company, including, without
limitation, any amendment of the Company's Certificate of Incorporation or
By-Laws, which matter would in any manner partially or wholly prevent or
materially impede, interfere with or delay any of the transactions
contemplated by the Purchase Agreement, as determined in good faith by
Purchaser and with respect to which Purchaser provides written notice to
the Shareholder.
(c) In the event that the Recapitalization (as defined in the Purchase
Agreement) is not consummated prior to June 30, 1999, each Shareholder
agrees to vote all Shares for which he has or shares the power to vote, or
grant a consent for approval in respect of such Shares in any manner
permitted by the DGCL, as such Shareholder is directed by the board of
directors of the Company, on any matters submitted to the shareholders of
the Company, other than the election of directors. The foregoing agreement
shall terminate automatically upon the termination of this Agreement with
respect to any Shares owned by such person upon transfer of such Shares
pursuant to Section 7. The Company shall be a third party beneficiary of
this Agreement for the purposes of this Section 2(c).
(d) Each Shareholder represents and warrants to the Company and
Capital Z that any proxies heretofore given in respect of the Shares are
not irrevocable, and that any such
<PAGE>
proxies are hereby revoked, to the extent in conflict with Section 2(c)
hereof.
(e) Each Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 2 is given in connection with the execution of the
Purchase Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Shareholder under this Agreement. Each
Shareholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. Each
Shareholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. Such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212(e) of the DGCL.
SECTION 3. Covenants of the Shareholder. Each Shareholder agrees with, and
covenants to, Capital Z that such Shareholder shall not on or prior to the
earlier to occur of June 30, 1999 or the consummation of the Recapitalization,
(i) transfer (which term shall include, without limitation, for the purposes of
this Agreement, any sale, gift, pledge, encumbrance (other than an unforeclosed
pledge or encumbrance for financing purposes where the Shareholder retains sole
voting power with respect to all pledged securities), or other disposition), or
consent to any transfer of, any or all the Shares or any interest therein,
unless the transferee(s) of such Shares agrees in writing to be bound by the
provisions of this Agreement applicable to such Shareholder, (ii) grant any
proxy, power-of-attorney or other authorization in or with respect to such
Shares, except under or in accordance or not in conflict with this Agreement, or
(iii) deposit such Shares into a voting trust, enter into a voting agreement or
arrangement with respect to such Shares or otherwise limit such Shareholder's
power to vote his or her Shares in a manner that conflicts with this Agreement.
SECTION 4. Certain Events. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Common Stock, or the acquisition of
additional shares of Common Stock or other voting securities of the Company by
such Shareholder, the number of Shares set forth in Section 1(a) hereof shall be
adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Common Stock or other voting securities of
the Company issued to or acquired by such Shareholder.
SECTION 5. Shareholder Capacity. No person executing this Agreement who is
or becomes a director of the Company makes any agreement or understanding herein
in his or her capacity as such director. Each Shareholder signs solely in such
Shareholder's capacity as the record and beneficial owner of the Shares.
<PAGE>
SECTION 6. Further Assurances. Each Shareholder shall, upon request of
Capital Z, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by Capital Z to be necessary or desirable to
carry out the provisions hereof.
SECTION 7. Termination. This Agreement, and all rights and obligations of
the parties hereunder, shall terminate upon the date upon which the
Recapitalization has been consummated and the Shareholder Approval has been
obtained or the Purchase Agreement is earlier terminated in accordance with its
terms, except that no Shareholder shall be relieved of any liability for breach
of this Agreement by such Shareholder prior to such termination. Further, this
Agreement shall terminate with respect to any Shares which are transferred as
permitted by Section 3 hereof.
SECTION 8. Defined Terms. Capitalized terms used and not otherwise defined
in this Agreement shall have the respective meanings assigned to them in the
Purchase Agreement.
SECTION 9. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be sufficiently given if sent by
registered or certified mail, postage prepaid, or overnight air courier service,
or telecopy or facsimile transmission (with hard copy to follow) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice): (i) if to Capital Z, to the address set forth in
Section 7.3 of the Purchase Agreement; and (ii) if to any Shareholder, to the
address set forth opposite such Shareholder's name on Exhibit A hereto.
SECTION 10. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 11. Counterparts; Effectiveness. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective as to any Shareholder when one or more
counterparts have been signed by Capital Z and such Shareholder and delivered to
Capital Z and such Shareholder.
SECTION 12. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement, and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
SECTION 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to any applicable conflicts of law principles of such State.
<PAGE>
SECTION 14. Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the parties
without the prior written consent of the other parties, except as expressly
contemplated by Section 3(a), and except that Capital Z may assign its rights
under this Agreement to any transferee of any of the Company's securities
acquired by it under the Purchase Agreement (and any such transferee may
similarly assign its rights in connection with any further transfer of such
securities, in whole or in part). Any assignment in violation of the foregoing
shall be void.
SECTION 15. Enforcement. Each party agrees that irreparable damage would
occur and that the other party hereto would not have any adequate remedy at law
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that each party shall be entitled to an injunction or
injunctions to prevent breaches by the other party hereto of this Agreement and
to enforce specifically the terms and provisions of this Agreement in any court
of the United States located in the State of Delaware or in Delaware State
court, this being in addition to any other remedy to which they are entitled at
law or in equity. In addition, each of the parties hereto (i) consents to submit
such party to the personal jurisdiction of any Federal court located in the
State of Delaware or any Delaware State court in the event any dispute arises
out of this Agreement or any of the transactions contemplated hereby, (ii)
agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iii)
agrees that such party will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a Federal
court sitting in the State of Delaware or a Delaware State court.
SECTION 16. Severability. If any term or provision hereof, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid or unenforceable with respect to
such jurisdiction, and only to such extent, and the remainder of the terms and
provisions hereof, and the application thereof to any other circumstance, shall
remain in full force and effect, shall not in any way be affected, impaired or
invalidated, and shall be enforced to the fullest extent permitted by law, and
the parties hereto shall reasonably negotiate in good faith a substitute term or
provision that comes as close as possible to the invalidated or unenforceable
term or provision, and that puts each party in a position as nearly comparable
as possible to the position each such party would have been in but for the
finding of invalidity or unenforceability, while remaining valid and
enforceable.
<PAGE>
SECTION 17. Amendment; Modification; Waiver. No amendment, modification or
waiver in respect of this Agreement shall be effective against any party unless
it shall be in writing and signed by such party.
<PAGE>
IN WITNESS WHEREOF, Capital Z and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
CAPITAL Z FINANCIAL SERVICES FUND II, L.P.,
By its General Partner
CAPITAL Z PARTNERS, L.P.,
By its General Partner
CAPITAL Z PARTNERS, LTD.
By:
-----------------------------
Name:
Title:
SHAREHOLDERS:
---------------------------------
Cary Thompson
---------------------------------
Neil Kornswiet
<PAGE>
Exhibit I-1
FORM OF
MANAGEMENT INVESTMENT AGREEMENT
(Cary Thompson)
MANAGEMENT INVESTMENT AGREEMENT (this "Agreement") dated as of
December 23, 1998, between Aames Financial Corporation, a Delaware corporation
(the "Company"), and Cary Thompson, an individual residing at 1944 Fairburn
Avenue, Los Angeles, California, 09925 (the "Management Investor").
WHEREAS, on the date hereof, the Company and Capital Z Financial
Services Fund II, L.P., a Bermuda limited partnership ("Capital Z"), are
entering into a Preferred Stock Purchase Agreement (the "Purchase Agreement"),
pursuant to which Capital Z has agreed to purchase, together with Capital Z
Affiliates and co-investors as designated by Capital Z, shares of the Company's
Series B Convertible Preferred Stock, par value $0.001 per share ("Series B
Preferred Stock") and Series C Convertible Preferred Stock, par value $0.001 per
share ("Series C Preferred Stock," and, together with the Series B Preferred
Stock, "Senior Preferred Stock"), in the amounts and subject to the conditions
set forth in the Purchase Agreement; and
WHEREAS, the Management Investor is a senior management employee of
the Company and, as a condition precedent to the closing of the transactions
contemplated by the Purchase Agreement, certain senior management employees of
the Company, including the Management Investor, are required to purchase Series
C Preferred Stock from the Company; and
WHEREAS, the Management Investor desires to purchase from the Company,
and the Company desires to sell to the Management Investor, Series C Preferred
Stock under the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not otherwise
defined in this Agreement shall have the respective meanings assigned to them in
the Purchase Agreement.
SECTION 2. Sale and Delivery.
(a) Upon the terms and subject to the conditions set forth herein, and
conditioned upon the consummation of the Initial Closing, in reliance upon the
representations and warranties of the Management Investor hereinafter set forth,
and for the purchase price described in Section 2(b), at the Initial Closing,
the Company shall issue, sell and deliver to the
<PAGE>
Management Investor, and the Management Investor shall purchase from the
Company, two hundred and fifty (250) shares of Series C Preferred Stock (such
shares of Series C Preferred Stock are referred to collectively herein as the
"Shares"). The number "250" in the preceding sentence shall be two hundred and
fifty thousand (250,000) if the Recapitalization has been consummated prior to
the Initial Closing Date).
(b) The purchase price per share of Series C Preferred Stock shall be
equal to the Purchase Price (as such term is defined in the Purchase Agreement)
(as used herein, the "Purchase Price") and shall be paid in cash at the Initial
Closing.
(c) The purchase and sale of Shares shall occur on the Initial Closing
Date and, at the Initial Closing:
(i) the Company shall deliver to the Management Investor certificates
representing the Shares, duly endorsed for transfer, transferring to
the Management Investor good and marketable title to such Shares, free
and clear of all liens and encumbrances; and
(ii) the Management Investor shall deliver to the Company the Purchase
Price, in immediately available funds to the account specified by the
Company at least two Business Days prior to the Initial Closing Date.
SECTION 3. Representations and Warranties of the Management Investor.
The Management Investor hereby represents and warrants to the Company as
follows:
(a) The Shares (and the Underlying Common Shares) to be purchased by
such Management Investor will be acquired for investment for the Management
Investor's own account and not with a view to the resale or distribution of
any part thereof, except in compliance with the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), or an exemption
therefrom, and in compliance with the terms of this Agreement. The
Management Investor is a senior management employee of the Company and is
fully familiar with the business of the Company and with the risks
associated with the purchase of the Shares pursuant to this Agreement. The
Management Investor is an accredited investor as defined under Rule 501(a)
under the Securities Act.
(b) The Management Investor understands that the Shares and the
Underlying Common Shares are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under
such laws and applicable regulations such Shares (and the Underlying Common
Shares) may be resold without registration under the Securities Act only in
certain limited circumstances.
2
<PAGE>
(c) The Management Investor further agrees that each certificate
representing the Shares (and the Underlying Common Shares) shall be stamped
or otherwise imprinted with a legend substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SUCH SECURITIES HAVE
BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION
IS AVAILABLE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND TO THE OTHER TERMS SET FORTH IN THAT
CERTAIN MANAGEMENT INVESTMENT AGREEMENT, DATED AS OF DECEMBER 23,
1998, A COPY OF WHICH AGREEMENT HAS BEEN FILED WITH THE SECRETARY
OF THE COMPANY AND ARE AVAILABLE UPON REQUEST."
SECTION 4. Restrictions on Transfer of Shares. For a period commencing
on the Initial Closing Date and ending on the fifth anniversary of the Initial
Closing Date, the Management Investor may not sell, transfer, assign, pledge,
hypothecate or otherwise dispose of (each, a "transfer") any of the Shares (or
the Underlying Common Shares), without the prior express written consent of the
Company, provided, however, that the foregoing restriction on transfer shall not
apply (i) if Capital Z Beneficially Owns less than (A) fifty percent (50%) of
the number of shares of Senior Preferred Stock purchased by Capital Z on the
Initial Closing Date (the "Original Preferred Shares") or (B) if any Original
Preferred Shares shall thereafter have been converted into Common Stock, fifty
percent (50%) of the sum of (x) the aggregate number of shares Common Stock
owned by Capital Z as a result of such conversion(s) plus (y) the aggregate
number of shares Common Stock into which any remaining Original Preferred Shares
owned by Capital Z may be converted (determined without regard to any
limitations on conversion of such shares prior to the Recapitalization), in each
case subject to adjustment for splits, combinations, reclassifications and
similar events; (ii) if the Management Employee dies, retires, is terminated by
the Company, or terminates his employment with the Company, subject to the
provisions of Section 5 hereof; or (iii) a Change of Control (as defined in the
New Option Plan) has occurred, but only if a Capital Z Realization Event (as
defined in the New Option Plan) has also occurred on or prior to such Change of
Control, and provided, further, that notwithstanding the foregoing restriction
on transfer, the Management Investor may transfer, during the twelve-month
period ending on the first anniversary of the Initial Closing Date and during
each succeeding twelve-month period, up to 25% of the total number of Underlying
Common Shares (whether structured as a transfer of Shares, Underlying Shares or
a combination thereof) acquired hereunder (subject to adjustment for splits,
combinations, reclassifications and similar events), it being further agreed
that the Management Investor may request the Company's Board of
3
<PAGE>
Directors to allow the Management Investor to transfer Shares (or Underlying
Common Shares) in excess of the 25% limitation described in this proviso if
extraordinary liquidity needs have arisen with respect to the Management
Investor, and, in such event, the Company (through its Board of Directors) will
consider such request in good faith and will not unreasonably withhold its
consent to a waiver of such limitation.
SECTION 5. Company's Option to Purchase Shares.
(a) In the event of the death or retirement from, or termination of
employment for any reason with, the Company of the Management Investor (a
"Termination Date"), the Company shall have the option, but not the obligation,
to purchase all, or any portion, of the Shares (and any Underlying Common Shares
that may have been acquired upon conversion of the Shares) then owned by the
Management Investor at the Fair Market Value (as hereinafter defined) per Share
and/or Underlying Common Share on the Business Day immediately prior to the date
on which the Company exercises its option to purchase in accordance with the
this Section 5. The Company may exercise the foregoing option at any time within
30 days after the Termination Date, by written notice to the Management
Investor, or his legal representative in the case of death, stating a date and
time for consummation of the purchase no less than 10 nor more than 30 days
after giving of such notice. "Fair Market Value" per Share or per Underlying
Common Share, as of any particular date, shall mean (a) in the case of a Share,
the product obtained by multiplying (I) the Formula Number (as defined in the
Certificate of Designations for the Senior Preferred Stock) in effect as of such
date by (II) the Current Market Price (as defined in the Certificate of
Designations for the Senior Preferred Stock) for the period of 15 consecutive
Trading Days (as defined in the Certificate of Designations for the Senior
Preferred Stock) prior to such date, or (b) in the case of an Underlying Share,
the Current Market Price for the period of 15 consecutive Trading Days prior to
such date.
(b) At the closing of the purchase of Shares (and any Underlying
Common Shares) by the Company pursuant to Section 4(a), the Management Investor
will deliver the Shares (and any Underlying Common Shares) to the Company
against payment by the Company to the Management Investor of the purchase price
for such Shares (and any Underlying Common Shares). Such purchase price shall be
paid in cash.
SECTION 5. Termination. All rights and obligations of the parties
hereunder shall terminate upon the date upon which the Purchase Agreement is
terminated in accordance with its terms, provided, that any such termination
that results from the breach by a party of his or its obligations hereunder
shall not relieve such party from any liability for breach of this Agreement.
4
<PAGE>
SECTION 6. Further Assurances. The Management Investor shall, upon
request of the Company, execute and deliver any additional documents and take
such further actions as may reasonably be deemed by the Company to be necessary
or desirable to carry out the provisions hereof.
SECTION 7. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be sufficiently given if sent by
registered or certified mail, postage prepaid, or overnight air courier service,
or telecopy or facsimile transmission (with hard copy to follow) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice): (i) if to the Company, to the address set forth in
Section 7.3 of the Purchase Agreement; and (ii) if to the Management Investor,
to the address set forth for the Management Investor in the preamble to this
Agreement or by telecopy to (323) 210-5253.
SECTION 8. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9. Counterparts; Effectiveness. This Agreement may be executed
in two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the Company and the Management Investor and delivered to the
Company and the Management Investor.
SECTION 10. Entire Agreement. This Agreement (including the documents
and instruments referred to herein) constitutes the entire agreement, and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
SECTION 11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to any applicable conflicts of law principles of such State.
SECTION 12. Successors and Assigns. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the parties
without the prior written consent of the other parties. Any assignment in
violation of the foregoing shall be void.
SECTION 13. Enforcement. Each party agrees that irreparable damage
would occur and that the other party hereto would not have any adequate remedy
at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that each party shall be entitled to an injunction or
injunctions to prevent breaches by the other party
5
<PAGE>
hereto of this Agreement and to enforce specifically the terms and provisions of
this Agreement in any court of the United States located in the State of
Delaware or in Delaware State court, this being in addition to any other remedy
to which they are entitled at law or in equity. In addition, each of the parties
hereto (i) consents to submit such party to the personal jurisdiction of any
Federal court located in the State of Delaware or any Delaware State court in
the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (iii) agrees that such party will not bring any action relating
to this Agreement or any of the transactions contemplated hereby in any court
other than a Federal court sitting in the State of Delaware of in Delaware State
court.
SECTION 14. Severability. If any term or provision hereof, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid or unenforceable with respect to
such jurisdiction, and only to such extent, and the remainder of the terms and
provisions hereof, and the application thereof to any other circumstance, shall
remain in full force and effect, shall not in any way be affected, impaired or
invalidated, and shall be enforced to the fullest extent permitted by law, and
the parties hereto shall reasonably negotiate in good faith a substitute term or
provision that comes as close as possible to the invalidated or unenforceable
term or provision, and that puts each party in a position as nearly comparable
as possible to the position each such party would have been in but for the
finding of invalidity or unenforceability, while remaining valid and
enforceable.
SECTION 15. Amendment; Modification; Waiver. No amendment,
modification or waiver in respect of this Agreement shall be effective against
any party unless it shall be in writing and signed by such party.
SECTION 16. Expenses. The Company and the Management Investor
shall each bear their own legal fees and other costs and expenses with respect
to the negotiation, execution and delivery of this Agreement and consummation of
the transactions contemplated hereby.
6
<PAGE>
IN WITNESS WHEREOF, the Company and the Management Investor have
caused this Agreement to be duly executed and delivered as of the date first
written above.
AAMES FINANCIAL CORPORATION
By:________________________
Name:
Title:
MANAGEMENT INVESTOR:
____________________________
Cary Thompson
7
<PAGE>
Exhibit I-2
FORM OF
MANAGEMENT INVESTMENT AGREEMENT
(Neil Kornswiet)
MANAGEMENT INVESTMENT AGREEMENT (this "Agreement") dated as of December
23, 1998, between Aames Financial Corporation, a Delaware corporation (the
"Company"), and Neil Kornswiet, an individual residing at 16105 Whitecap Lane,
Huntington Beach, California, 96249 (the "Management Investor").
WHEREAS, on the date hereof, the Company and Capital Z Financial
Services Fund II, L.P., a Bermuda limited partnership ("Capital Z"), are
entering into a Preferred Stock Purchase Agreement (the "Purchase Agreement"),
pursuant to which Capital Z has agreed to purchase, together with Capital Z
Affiliates and co-investors as designated by Capital Z, shares of the Company's
Series B Convertible Preferred Stock, par value $0.001 per share ("Series B
Preferred Stock") and Series C Convertible Preferred Stock, par value $0.001 per
share ("Series C Preferred Stock," and, together with the Series B Preferred
Stock, "Senior Preferred Stock"), in the amounts and subject to the conditions
set forth in the Purchase Agreement; and
WHEREAS, the Management Investor is a senior management employee of the
Company and, as a condition precedent to the closing of the transactions
contemplated by the Purchase Agreement, certain senior management employees of
the Company, including the Management Investor, are required to purchase Series
C Preferred Stock from the Company; and
WHEREAS, the Management Investor desires to purchase from the Company,
and the Company desires to sell to the Management Investor, Series C Preferred
Stock under the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not otherwise
defined in this Agreement shall have the respective meanings assigned to them in
the Purchase Agreement.
SECTION 2. Sale and Delivery.
(a) Upon the terms and subject to the conditions set forth herein, and
conditioned upon the consummation of the Initial Closing, in reliance upon the
representations and warranties of the Management Investor hereinafter set forth,
and for the purchase price described in Section 2(b), the Company
<PAGE>
shall issue, sell and deliver to the Management Investor pursuant to the Rights
Offering, and the Management Investor shall purchase from the Company pursuant
to the Rights Offer, an aggregate of $1,667,000 in stated value (at $1.00 per
share) of Series C Preferred Stock (such shares of Series C Preferred Stock are
referred to collectively herein as the "Shares") at the price per share at which
Series Preferred Stock is offered in the Rights Offer, subject to the terms and
conditions of the Rights Offering.
(b) The purchase price for the Shares purchased by the Management
Investor shall be paid by delivery by the Management Investor to the Company of
a 6.5% promissory note having an original principal amount equal to such amount
(the "Note"), the form of which Note is attached hereto as Exhibit A.
(c) The purchase and sale of Shares by the Management Investor shall
occur at the time and place provided for in the Rights Offer, and at the closing
of such purchase and sale of Shares by the Management Investor:
(i) the Company shall deliver to the Management Investor certificates
representing the Shares, duly endorsed for transfer, transferring to the
Management Investor good and marketable title to such Shares, free and clear
of all liens and encumbrances; and
(ii) the Management Investor shall deliver to the Company:
(A) any documents required to be submitted by a Company
shareholder desiring to participate in the Rights Offer;
(B) the Note; and
(C) a pledge agreement (the "Pledge Agreement") substantially in
the form attached hereto as Exhibit B, pursuant to which Pledge
Agreement, among other things, the Management Investor's obligations
under the Note shall be secured by a pledge of (i) the Shares, (ii) the
shares of Common Stock that may be acquired upon conversion of the
Shares (the "Underlying Common Shares"), and (iii) certain other
collateral described therein.
SECTION 3. Representations and Warranties of the Management Investor.
The Management Investor hereby represents and warrants to the Company as
follows:
(a) The Shares (and the Underlying Common Shares) to be purchased by
such Management Investor will be acquired for investment for the Management
Investor's own account and not with a view to the resale or distribution of any
part thereof, except
2
<PAGE>
in compliance with the provisions of the Securities Act of 1933, as amended (the
"Securities Act"), or an exemption therefrom, and in compliance with the terms
of this Agreement. The Management Investor is a senior management employee of
the Company and is fully familiar with the business of the Company and with the
risks associated with the purchase of the Shares pursuant to this Agreement. The
Management Investor is an accredited investor as defined under Rule 501(a) under
the Securities Act.
(b) The Management Investor understands that the Shares and the
Underlying Common Shares are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the Company in
a transaction not involving a public offering and that under such laws and
applicable regulations such Shares (and the Underlying Common Shares) may be
resold without registration under the Securities Act only in certain limited
circumstances.
(c) The Management Investor further agrees that each certificate
representing the Shares (and the Underlying Common Shares) shall be stamped or
otherwise imprinted with a legend substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS SUCH SECURITIES HAVE BEEN REGISTERED
UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND TO THE OTHER TERMS SET FORTH IN THAT
CERTAIN MANAGEMENT INVESTMENT AGREEMENT, DATED AS OF DECEMBER 23, 1998,
AND BY A CERTAIN RELATED PLEDGE AGREEMENT, BETWEEN THE COMPANY AND NEIL
KORNSWIET, A COPY OF WHICH AGREEMENTS HAVE BEEN FILED WITH THE
SECRETARY OF THE COMPANY AND ARE AVAILABLE UPON REQUEST."
SECTION 4. Restrictions on Transfer of Shares. For a period commencing
on the Initial Closing Date and ending on the fifth anniversary of the Initial
Closing Date, the Management Investor may not sell, transfer, assign, pledge,
hypothecate or otherwise dispose of (each, a "transfer") any of the Shares (or
the Underlying Common Shares), without the prior express written consent of the
Company, provided, however, that the foregoing restriction on transfer shall not
apply (i) if Capital Z Beneficially Owns less than (A) fifty percent (50%) of
the number of shares of Senior Preferred Stock purchased by Capital Z on the
Initial Closing Date (the "Original Preferred Shares") or (B) if any Original
Preferred Shares shall thereafter have been converted into Common Stock, fifty
percent (50%) of the sum of (x) the aggregate number of shares Common Stock
owned by Capital Z as a result of such conversion(s) plus (y) the aggregate
number of shares Common Stock into which any remaining Original
3
<PAGE>
Preferred Shares owned by Capital Z may be converted (determined without regard
to any limitations on conversion of such shares prior to the Recapitalization),
in each case subject to adjustment for splits, combinations, reclassifications
and similar events; (ii) if the Management Employee dies, retires, is terminated
by the Company, or terminates his employment with the Company, subject to the
provisions of Section 5 hereof; or (iii) a Change of Control (as defined in the
New Option Plan) has occurred, but only if a Capital Z Realization Event (as
defined in the New Option Plan) has also occurred on or prior to such Change of
Control, and provided, further, that notwithstanding the foregoing restriction
on transfer, the Management Investor may transfer, during the twelve-month
period ending on the first anniversary of the Initial Closing Date and during
each succeeding twelve-month period, up to 25% of the total number of Underlying
Common Shares (whether structured as a transfer of Shares, Underlying Shares or
a combination thereof) acquired hereunder (subject to adjustment for splits,
combinations, reclassifications and similar events), it being further agreed
that the Management Investor may request the Company's Board of Directors to
allow the Management Investor to transfer Shares (or Underlying Common Shares)
in excess of the 25% limitation described in this proviso if extraordinary
liquidity needs have arisen with respect to the Management Investor, and, in
such event, the Company (through its Board of Directors) will consider such
request in good faith and will not unreasonably withhold its consent to a waiver
of such limitation.
SECTION 5. Company's Option to Purchase Shares.
(a) In the event of the death or retirement from, or termination of
employment for any reason with, the Company of the Management Investor (a
"Termination Date"), the Company shall have the option, but not the obligation,
to purchase all, or any portion, of the Shares (and any Underlying Common Shares
that may have been acquired upon conversion of the Shares) then owned by the
Management Investor at the Fair Market Value (as hereinafter defined) per Share
and/or Underlying Common Share on the Business Day immediately prior to the date
on which the Company exercises its option to purchase in accordance with the
this Section 5. The Company may exercise the foregoing option at any time within
30 days after the Termination Date, by written notice to the Management
Investor, or his legal representative in the case of death, stating a date and
time for consummation of the purchase no less than 10 nor more than 30 days
after giving of such notice. "Fair Market Value" per Share or per Underlying
Common Share, as of any particular date, shall mean (a) in the case of a Share,
the product obtained by multiplying (I) the Formula Number (as defined in the
Certificate of Designations for the Senior Preferred Stock) in effect as of such
date by (II) the Current Market Price (as defined in the Certificate of
Designations for the Senior Preferred Stock) for the period of 15 consecutive
Trading Days (as defined in the Certificate of Designations for the Senior
Preferred Stock) prior to such date, or (b) in the
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case of an Underlying Share, the Current Market Price for the period of 15
consecutive Trading Days prior to such date.
(b) At the closing of the purchase of Shares (and any Underlying Common
Shares) by the Company pursuant to Section 4(a), the Management Investor will
deliver the Shares (and any Underlying Common Shares) to the Company against
payment by the Company to the Management Investor of the purchase price for such
Shares (and any Underlying Common Shares). Such purchase price shall be paid in
cash, provided that if any principal or accrued but unpaid interest is then
outstanding under the Note, the cash portion of the purchase price shall be
reduced by the amount of such outstanding principal and accrued interest on the
Note (with such reduction being applied first to any accrued interest and then
to principal), and, if no principal or accrued interest is then remaining on the
Note, the Note shall be canceled.
SECTION 5. Termination. All rights and obligations of the parties
hereunder shall terminate upon the date upon which the Purchase Agreement is
terminated in accordance with its terms, provided, that any such termination
that results from the breach by a party of his or its obligations hereunder
shall not relieve such party from any liability for breach of this Agreement.
SECTION 6. Further Assurances. The Management Investor shall, upon
request of the Company, execute and deliver any additional documents and take
such further actions as may reasonably be deemed by the Company to be necessary
or desirable to carry out the provisions hereof.
SECTION 7. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be sufficiently given if sent by
registered or certified mail, postage prepaid, or overnight air courier service,
or telecopy or facsimile transmission (with hard copy to follow) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice): (i) if to the Company, to the address set forth in
Section 7.3 of the Purchase Agreement; and (ii) if to the Management Investor,
to the address set forth for the Management Investor in the preamble to this
Agreement or by telecopy to (323) 210-4537.
SECTION 8. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9. Counterparts; Effectiveness. This Agreement may be executed
in two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the Company and the Management Investor and delivered to the
Company and the Management Investor.
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SECTION 10. Entire Agreement. This Agreement (including the documents
and instruments referred to herein) constitutes the entire agreement, and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
SECTION 11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to any applicable conflicts of law principles of such State.
SECTION 12. Successors and Assigns. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the parties
without the prior written consent of the other parties. Any assignment in
violation of the foregoing shall be void.
SECTION 13. Enforcement. Each party agrees that irreparable damage
would occur and that the other party hereto would not have any adequate remedy
at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that each party shall be entitled to an injunction or
injunctions to prevent breaches by the other party hereto of this Agreement and
to enforce specifically the terms and provisions of this Agreement in any court
of the United States located in the State of Delaware or in Delaware State
court, this being in addition to any other remedy to which they are entitled at
law or in equity. In addition, each of the parties hereto (i) consents to submit
such party to the personal jurisdiction of any Federal court located in the
State of Delaware or any Delaware State court in the event any dispute arises
out of this Agreement or any of the transactions contemplated hereby, (ii)
agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iii)
agrees that such party will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a Federal
court sitting in the State of Delaware of in Delaware State court.
SECTION 14. Severability. If any term or provision hereof, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid or unenforceable with respect to
such jurisdiction, and only to such extent, and the remainder of the terms and
provisions hereof, and the application thereof to any other circumstance, shall
remain in full force and effect, shall not in any way be affected, impaired or
invalidated, and shall be enforced to the fullest extent permitted by law, and
the parties hereto shall reasonably negotiate in good faith a substitute term or
provision that comes as close as possible to the invalidated or unenforceable
term or provision, and that puts each party in a
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position as nearly comparable as possible to the position each such party would
have been in but for the finding of invalidity or unenforceability, while
remaining valid and enforceable.
SECTION 15. Amendment; Modification; Waiver. No amendment, modification
or waiver in respect of this Agreement shall be effective against any party
unless it shall be in writing and signed by such party.
SECTION 16. Expenses. The Company and the Management Investor shall
each bear their own legal fees and other costs and expenses with respect to the
negotiation, execution and delivery of this Agreement and consummation of the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the Company and the Management Investor have caused
this Agreement to be duly executed and delivered as of the date first written
above.
AAMES FINANCIAL CORPORATION
By:________________________
Name:
Title:
MANAGEMENT INVESTOR:
___________________________
Neil Kornswiet
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EXHIBIT A TO
MANAGEMENT INVESTMENT AGREEMENT
(Neil Kornswiet)
FORM OF
SECURED PROMISSORY NOTE
$__________ ________, 1999
FOR VALUE RECEIVED, Neil Kornswiet (the "Maker"), hereby promises to
pay to the order of Aames Financial Corporation, a Delaware corporation
("Aames"), 2 California Plaza, 350 South Grand Avenue, Los Angeles, CA 90071 or
such address as Aames shall have given to the Maker, the principal sum of
DOLLARS and 00/100 ($_______), plus interest, which shall accrue from the date
hereof, on the unpaid principal balance of this Note at such address, at the
rate of 6.5% per annum (computed on the basis of a 360-day year) until the
principal amount hereof has been repaid in full, on ________, 2004.
The Maker shall have the option to prepay the principal amount and
accrued interest on this Note, in whole or in part, at any time, without payment
of premium or penalty. During the period in which this Note is outstanding, the
Maker shall make an annual mandatory prepayment against the outstanding
principal balance of, and accrued interest on, this Note an amount equal to 25%
of the aggregate cash bonuses (if any) paid to Maker in respect of the fiscal
year ended immediately prior to such payment date, net of income taxes payable
thereon, such payments to be made within two business days after receipt of the
cash bonus paid at the end of such fiscal year and to be applied first, against
any accrued and unpaid interest on this Note and then, to the outstanding
principal balance of this Note. In addition, upon receipt by the Maker of any
proceeds from the transfer of the securities pledged under the Pledge Agreement
(as defined below) or dividends, interest payments or other distributions of
cash in respect of such pledged securities, the Maker shall make an immediate
prepayment in respect of the Note in an amount equal to the after tax amount of
such proceeds, dividends, payments or distributions, with such prepayments to be
applied first to the payment of all interest accrued on, and then to the payment
of unpaid principal of, this Note.
Payments of principal and interest shall be made in such currency of
the United States as at the time of payment shall be legal tender for the
payment of public and private debts.
Aames and the Maker have entered into a pledge agreement dated the
date hereof (the "Pledge Agreement") providing, among
<PAGE>
other things, for the securing of this Note by a pledge of the Pledged
Collateral (as defined in the Pledge Agreement).
If any of the following events (each, an "Event of Default") shall occur:
(a) the Maker shall default in the payment of any part of
the principal or interest on this Note when the same shall become due
and payable, whether at maturity, by acceleration or otherwise and
such default continues for more than 10 days after receipt of notice
from Aames;
(b) the Maker's employment with Aames shall have ceased for
any reason whatsoever or for no reason, whether such cessation is
voluntary or involuntary, and regardless of whether the Maker may
claim such cessation of employment constitutes a wrongful termination
of employment;
(c) the Maker shall (i) become insolvent or be unable, or
admit in writing his inability, to pay his debts as they mature; (ii)
make a general assignment for the benefit of creditors; (iii) be
adjudicated as bankrupt or insolvent or file a voluntary petition in
bankruptcy; (iv) file a petition or an answer seeking an arrangement
with creditors to take advantage of any insolvency law; or (v) file an
answer admitting to the material obligations or consent to, or default
in answering, or fail to have dismissed within 60 days after the
filing thereof, a petition filed against him in any bankruptcy or
insolvency proceeding; or
(d) any breach of the Maker's obligations under the Pledge
Agreement shall have occurred and be continuing or any representation
or warranty made thereunder shall be false in any material respect,
then, the holder of this Note may at any time by written notice to the
Maker, declare the entire unpaid principal of and the interest accrued on this
Note through the date of such Event of Default to be forthwith due and payable,
without other notices or demands of any kind, all of which are hereby waived by
the Maker.
Subject to the terms and conditions herein, if Maker is employed by
Aames for the full period from the date hereof through the first anniversary of
the Effective Date, as such term is defined in Maker's current Employment
Agreement with Aames (the "Employment Agreement"), or through the date of any
earlier termination of Maker's employment by Aames pursuant to Paragraphs 5A, B,
or F of the Employment Agreement or by the Maker pursuant to Paragraph 5D of the
Employment Agreement, the indebtedness evidenced by this Note shall be
nonrecourse (i.e., Aames shall not have recourse to any assets of Maker for any
liability under or in connection with the Pledge Agreement other than the
Pledged Collateral and, Aames shall not be liable for any deficiency
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owing in respect of such liabilities in the event the proceeds derived from the
sale of such Pledged Collateral are insufficient to pay such liabilities.
The Maker agrees to pay to the holder hereof all expenses incurred by
such holder, including reasonable attorneys' fees, in enforcing and collecting
this Note.
The Maker hereby forever waives presentment, demand, presentment for
payment, protest, notice of protest, notice of dishonor of this Note and all
other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note.
This Note shall be paid without deduction by reason of any set-off,
defense or counterclaim of the Maker.
This Note shall be governed by and construed in accordance with the
laws of the State of Delaware, without giving effect to conflicts of law
principles thereof, shall be binding upon the heirs or legal representatives of
the Maker and shall inure to the benefits of the successors and assigns of
Aames.
_______________________________
Neil Kornswiet
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EXHIBIT B TO MANAGEMENT INVESTMENT AGREEMENT
(Neil Kornswiet)
FORM OF PLEDGE AGREEMENT
PLEDGE AGREEMENT ("Agreement"), dated as of _____, 1999, made by Neil
Kornswiet, an individual residing at 16105 Whitecap Lane, Huntington Beach, CA,
92649 (the "Pledgor"), to Aames Financial Corporation, a Delaware corporation
("Aames").
WHEREAS, on the date hereof, the Pledgor is purchasing shares of Aames'
Series C Convertible Preferred Stock, par value $0.001 per share ("Series C
Preferred Stock"), pursuant to a Management Investment Agreement, dated the date
hereof, between Pledgor and Aames (the "Management Investment Agreement"); and
WHEREAS, as part of the transactions contemplated by the Management
Investment Agreement, the Pledgor is executing and delivering to Aames a Secured
Promissory Note dated as of the date hereof in favor of Aames (the "Aames Note")
as part of the purchase price for the Series C Preferred Stock, and (ii) in
accordance with the terms and conditions set forth herein, pledge the Series C
Preferred Stock, together with any shares of Aames' common stock, par value
$0.001 per share that may be acquired upon conversion of the Series C Preferred
Stock (the "Underlying Common Shares, and, together with the shares of Series C
Preferred Stock, the "Pledged Shares").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and in order to induce Aames to accept
the Aames Note, the Pledgor hereby agrees as follows:
SECTION 1. Pledge. The Pledgor hereby pledges to Aames, and grants to
Aames a security interest in, the following (the "Pledged Collateral"):
(i) the Pledged Shares and the certificates representing the Pledged
Shares, and all dividends, cash, instruments and other property of any character
whatsoever (including, without limitation, shares of Common Stock) from time to
time received, receivable or otherwise distributed or distributable in respect
of or in exchange for any or all of the Pledged Shares; and
(ii) all proceeds of any and all of the foregoing collateral
(including, without limitation, proceeds that constitute property of the types
described above).
SECTION 2. Security for Obligations. This Agreement secures the payment
of all obligations, whether for principal, interest, fees, expenses or
otherwise, now or hereafter existing, of the Pledgor under the Aames Note and
under this Agreement (all such obligations of the Pledgor being the
"Obligations").
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Without limiting the generality of the foregoing, this Agreement secures the
payment of all amounts which constitute part of the Obligations and would be
owed by the Pledgor to Aames under the Aames Note or this Agreement but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Pledgor.
SECTION 3. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged Collateral shall be delivered
to and held by or on behalf of Aames pursuant hereto and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Aames. Aames shall have the right, at any time in its discretion
and without notice to the Pledgor, to transfer to or to have registered in the
name of Aames or any of its nominees any or all of the Pledged Collateral,
subject only to the revocable rights specified in Section 6(a). For the better
perfection of Aames's rights in and to the Pledged Collateral, the Pledgor shall
forthwith, upon the pledge of any Pledged Collateral hereunder, cause such
Pledged Collateral to be registered in the name of Aames or such nominee or
nominees of Aames as Aames shall direct, subject only to the revocable rights
specified in Section 6(a). In addition, Aames shall have the right at any time
to exchange certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger denominations.
SECTION 4. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) Neither the execution nor the delivery by the Pledgor of this
Agreement nor the consummation by the Pledgor of the transactions
contemplated hereby, nor compliance with nor fulfillment by the Pledgor of
the terms and provisions hereof, will conflict with or result in a breach of
the terms, conditions or provisions of or constitute a default under any
lease, contract, instrument, mortgage, deed of trust, trust deed or deed to
secure debt evidencing or securing indebtedness for borrowed money,
financing lease, law, rule, regulation, judgment, order, award, decree or
other restriction of any kind to which the Pledgor is a party or by which he
is bound.
(b) This Agreement has been duly executed and delivered by the Pledgor
and is the legal, valid and binding obligation of the Pledgor, enforceable
against the Pledgor in accordance with its terms.
(c) There is no action, lawsuit, claim, counterclaim, proceeding, or
investigation (or group of related actions, lawsuits, claims, proceedings or
investigations) pending or, to the knowledge of the Pledgor, threatened,
relating to or
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challenging the Pledgor's obligations under this Agreement or the pledge of
the Pledged Collateral hereunder.
(d) The Pledgor is the legal and beneficial owner of the Pledged
Collateral free and clear of any lien, security interest, option or other
charge or encumbrance except for the security interest created by this
Agreement.
(e) The pledge of the Pledged Shares pursuant to this Agreement creates
a valid and perfected first priority security interest in the Pledged
Collateral, securing the payment of the Obligations.
(f) No consent of any other person or entity and no authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required (i) for the pledge by
the Pledgor of the Pledged Collateral pursuant to this Agreement or for the
execution, delivery or performance of this Agreement by the Pledgor, (ii)
for the perfection or maintenance of the security interest created hereby
(including the first priority nature of such security interest) or (iii) for
the exercise by Aames of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant to
this Agreement (except as may be required in connection with any disposition
of any portion of the Pledged Collateral by laws affecting the offering and
sale of securities generally).
(g) There are no conditions precedent to the effectiveness of the
Pledgor's obligations under this Agreement that have not been satisfied or
waived.
SECTION 5. Further Assurances. (a) The Pledgor agrees that at any time
and from time to time, at the expense of the Pledgor, the Pledgor will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that Aames may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable Aames to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Collateral.
(b) The Pledgor hereby authorizes Aames to file one or more financing
or continuation statements, and amendments thereto, relating to all or any part
of the Pledged Collateral without the signature of the Pledgor where permitted
by law. A photocopy or other reproduction of this Agreement or any financing
statement covering the Pledged Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
SECTION 6. Voting Rights; Dividends, Etc. (a) so long as no Event of
Default (as defined in the Aames Note) or
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event which, with the giving of notice or the lapse of time, or both, would
become such an Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise or refrain from
exercising any and all voting and other consensual rights pertaining to the
Pledged Collateral or any part thereof for any purpose not inconsistent with
the terms of this Agreement or the Aames Note; provided, however, that the
Pledgor shall not exercise or refrain from exercising any such right if, in
Aames's judgment, such action would have a material adverse effect on the
value of the Pledged Collateral or any part thereof.
(ii) The Pledgor shall be entitled to any and all dividends paid in
respect of the Pledged Collateral; provided, however, that any and all
dividends paid or payable other than in cash in respect of, and instruments
and other property received, receivable or otherwise distributed in respect
of or in exchange for, any Pledged Collateral, shall be, and shall be
forthwith delivered to Aames to hold as, Pledged Collateral and shall, if
received by the Pledgor, be received in trust for the benefit of Aames, be
segregated from the other property or funds of the Pledgor, and be forthwith
delivered to Aames as Pledged Collateral in the same form as so received
(with any necessary endorsement or assignment); and provided, further, that
the after tax amount of any cash dividends, proceeds, or other distributions
paid in respect of the Pledged Collateral shall be applied as an immediate
prepayment in respect of the Aames Note, with such prepayments to be applied
first to the payment of all interest accrued on, and then to the payment of
unpaid principal of, the Aames Note.
(iii) Aames shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies and other instruments as the
Pledgor may reasonably request for the purpose of enabling the Pledgor to
exercise the voting and other rights which it is entitled to exercise
pursuant to paragraph (i) above and to receive the dividends which it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default or an event which, with the giving of notice or the lapse of time, or
both, would become an Event of Default:
(i) All rights of the Pledgor (x) to exercise or refrain from
exercising the voting and other consensual rights which it would otherwise
be entitled to exercise pursuant to Section 6(a)(i) shall, upon notice to
the Pledgor by Aames, cease and (y) to receive the dividends payments which
it would otherwise be authorized to receive and retain pursuant to Section
6(a)(ii) shall automatically
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cease, and all such rights shall thereupon become vested in Aames (or its
designee), who shall thereupon have the sole right to exercise or refrain
from exercising such voting and other consensual rights and to receive and
hold as Pledged Collateral such dividends.
(ii) All dividends which are received by the Pledgor contrary to the
provisions of paragraph (i) of this Section 6(b) shall be received in trust
for the benefit of Aames, shall be segregated from other funds of the
Pledgor and shall be forthwith paid over to Aames as Pledged Collateral in
the same form as so received (with any necessary endorsement).
SECTION 7. Transfers and Other Liens. The Pledgor agrees that it will
not (i) sell, assign (by operation of law or otherwise) or otherwise dispose of,
or grant any option with respect to, any of the Pledged Collateral or (ii)
create or permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement and except for any such sale the
proceeds from which are used to repay all unpaid principal of, and accrued
interest on, the Aames Note (with such proceeds first being applied to accrued
interest and then to principal).
SECTION 8. Appointment of Attorney-in-Fact. The Pledgor hereby appoints
[_______] the Pledgor's attorney-in-fact, with full authority in the place and
stead of the Pledgor and in the name of the Pledgor or otherwise, from time to
time in Aames's discretion to take any action and to execute any instrument that
Aames may deem necessary or advisable to accomplish the purposes of this
Agreement (subject to the rights of the Pledgor under Section 6), including,
without limitation, to receive, indorse and collect all instruments made payable
to the Pledgor representing any dividend or other distribution in respect of the
Pledged Collateral or any part thereof and to give full discharge for the same.
SECTION 9. Aames May Perform. If the Pledgor fails to perform any
agreement contained herein and does not cure such failure within 10 days after
its receipt of written notice from Aames, Aames may itself perform, or cause
performance of, such agreement, and the expenses of Aames incurred in connection
therewith shall be payable by the Pledgor under Section 12.
SECTION 10. Aames' Duties. The powers conferred on Aames hereunder are
solely to protect its interest in the Pledged Collateral and shall not impose
any duty upon it to exercise any such powers. Except for the safe custody of any
Pledged Collateral in its possession and the accounting for moneys actually
received by it hereunder, Aames shall have no duty as to any Pledged Collateral
as to ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or
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other matters relative to any Pledged Collateral, whether or not Aames has or is
deemed to have knowledge of such matters, or as to the taking of any necessary
steps to preserve rights against any parties or any other rights pertaining to
any Pledged Collateral. Aames shall be deemed to have exercised reasonable care
in the custody and preservation of any Pledged Collateral in its possession if
such Pledged Collateral is accorded treatment substantially equal to that which
Aames accords its own property.
SECTION 11. Remedies upon Default. If any Event of Default shall have
occurred and be continuing:
(a) Aames may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the Uniform Commercial Code in effect in the State of Delaware at that
time (the "Code") (whether or not the Code applies to the affected
Collateral), and may also, without notice except as specified below, sell
the Pledged Collateral or any part thereof in one or more parcels at public
or private sale, at any exchange or broker's board or elsewhere, for cash,
on credit or for future delivery, and upon such other terms as Aames may
deem commercially reasonable. The Pledgor agrees that, to the extent notice
of sale shall be required by law, at least ten days' notice to the Pledgor
of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. Aames shall not
be obligated to make any sale of Pledged Collateral regardless of notice of
sale having been given. Aames may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it
was so adjourned.
(b) Any cash held by Aames as Pledged Collateral and all cash proceeds
received by Aames in respect of any sale of, collection from or other
realization upon all or any part of the Pledged Collateral may, in the
discretion of Aames, be held by Aames as collateral for, and/or then or at
any time thereafter be applied (after payment of any amounts payable to
Aames pursuant to Section 12) in whole or in part by Aames against, all or
any part of the Obligations in such order as Aames shall elect. Any surplus
of such cash or cash proceeds held by Aames and remaining after payment in
full of all the Obligations shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
SECTION 12. Expenses. The Pledgor will upon demand pay to Aames the
amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which Aames may incur in
connection with
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(i) the exercise or enforcement of any of the rights of Aames hereunder or (ii)
the failure by the Pledgor to perform or observe any of the provisions hereof.
SECTION 13. Security Interest Absolute. The obligations of the Pledgor
under this Agreement are independent of the Obligations, and a separate action
or actions may be brought and prosecuted against the Pledgor to enforce this
Agreement. All rights of Aames and security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the Aames Note any other
agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations, or any other amendment or
waiver of or any consent to any departure from the Aames Note;
(iii) any taking, exchange, release or nonperfection of any other
collateral, or any taking, release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations;
(iv) any manner of application of collateral, or proceeds thereof, to
all or any of the Obligations, or any manner of sale or other disposition of
any collateral for all or any of the Obligations or any other assets of the
Pledgor;
(v) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Pledgor.
SECTION 14. Amendments, Etc. No amendment or waiver of any provision of
this Agreement shall in any event be effective unless the same shall be in
writing and signed by the parties hereto, and no consent to any departure by one
party herefrom, shall in any event be effective unless the same shall be in
writing and signed by the other party, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 15. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and sent by express courier, telecopied, telegraphed, telexed or
hand-delivered, if to the Pledgor, at his address first set forth above; and, if
to Aames, at its address at 2 California Plaza, 350 South Grand Avenue, Los
Angeles, CA 90071, Attention: Cary Thompson; or, as to each party, at such other
address as shall be designated by such party in a written notice to the other
party.
7
<PAGE>
All such notices and communications shall, when sent by express courier, be
effective three days after being sent, when telecopied, telegraphed, telexed or
hand-delivered, be effective when telecopied, delivered to the telegraph
company, confirmed by telex answerback or delivered, respectively.
SECTION 16. Continuing Security Interest; Assignments Under Aames Note.
This Agreement shall create a continuing security interest in the Pledged
Collateral and shall (i) remain in full force and effect until the payment in
full of the Obligations and all other amounts payable under this Agreement, (ii)
be binding upon the Pledgor, its successors and assigns and (iii) inure to the
benefit of, and be enforceable by, Aames and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause (iii), Aames
may assign or otherwise transfer all or any portion of its rights and
obligations under the Aames Note to any other person or entity, and such other
person or entity shall thereupon become vested with all the benefits in respect
thereof granted to Aames herein or otherwise. Upon the payment in full of the
Obligations and all other amounts payable under this Agreement, the security
interest granted hereby shall terminate and all rights to the Pledged Collateral
shall revert to the Pledgor. Upon any such termination, Aames will, at the
Pledgor's expense, return to the Pledgor such of the Pledged Collateral as shall
not have been sold or otherwise applied pursuant to the terms hereof and execute
and deliver to the Pledgor such documents as the Pledgor shall reasonably
request to evidence such termination.
SECTION 17. Governing Law; Terms. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE EXCEPT TO
THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER,
OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF DELAWARE. Unless
otherwise defined herein or in the Aames Note, terms defined in Article 9 of the
Code are used herein as therein defined.
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<PAGE>
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
_________________________________
Neil Kornswiet
ACKNOWLEDGED AND AGREED:
AAMES FINANCIAL CORPORATION
By:_________________________
Name:
Title:
9
<PAGE>
Exhibit I-3
FORM OF
MANAGEMENT INVESTMENT AGREEMENT
(Other than Neil Kornswiet)
MANAGEMENT INVESTMENT AGREEMENT (this "Agreement") dated as of
________, 1999, between Aames Financial Corporation, a Delaware corporation (the
"Company"), and ___________, an individual residing at __________ (the
"Management Investor").
WHEREAS, on the date hereof, the Company and Capital Z Financial
Services Fund II, L.P., a Bermuda limited partnership ("Capital Z"), are
entering into a Preferred Stock Purchase Agreement (the "Purchase Agreement"),
pursuant to which Capital Z has agreed to purchase, together with Capital Z
Affiliates and co-investors as designated by Capital Z, shares of the Company's
Series B Convertible Preferred Stock, par value $0.001 per share ("Series B
Preferred Stock") and Series C Convertible Preferred Stock, par value $0.001 per
share ("Series C Preferred Stock," and, together with the Series B Preferred
Stock, "Senior Preferred Stock"), in the amounts and subject to the conditions
set forth in the Purchase Agreement; and
WHEREAS, the Management Investor is a senior management employee of
the Company and, as a condition precedent to the closing of the transactions
contemplated by the Purchase Agreement, certain senior management employees of
the Company, including the Management Investor, are required to purchase Series
C Preferred Stock from the Company; and
WHEREAS, the Management Investor desires to purchase from the Company,
and the Company desires to sell to the Management Investor, Series C Preferred
Stock under the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not otherwise
defined in this Agreement shall have the respective meanings assigned to them in
the Purchase Agreement.
SECTION 2. Sale and Delivery.
(a) Upon the terms and subject to the conditions set forth herein, and
conditioned upon the consummation of the Initial Closing, in reliance upon the
representations and warranties of the Management Investor hereinafter set forth,
and for the purchase price described in Section 2(b), at the Initial Closing,
the Company shall issue, sell and deliver to the
<PAGE>
Management Investor, and the Management Investor shall purchase from the
Company, [_______] (_____) shares of Series C Preferred Stock (such shares of
Series C Preferred Stock are referred to collectively herein as the "Shares").
(b) The purchase price per share of Series C Preferred Stock shall be
equal to the Purchase Price (as such term is defined in the Purchase Agreement)
(as used herein, the "Purchase Price") and shall be paid as follows at the
Initial Closing:
(i) an amount equal to 50% of the aggregate Purchase Price
for all the Shares being purchased by the Management Investor
hereunder shall be paid in cash (the "Closing Payment"); and
(ii) an amount equal to 50% of the aggregate Purchase Price
for all the Shares being purchased by the Management Investor
hereunder shall be paid by delivery by the Management Investor to the
Company of a 6.5% promissory note having an original principal amount
equal to such amount (the "Note"), the form of which Note is attached
hereto as Exhibit A.
(c) The purchase and sale of Shares shall occur on the Initial Closing
Date and, at the Initial Closing:
(i) the Company shall deliver to the Management Investor
certificates representing the Shares, duly endorsed for transfer,
transferring to the Management Investor good and marketable title to
such Shares, free and clear of all liens and encumbrances; and
(ii) the Management Investor shall deliver to the Company:
(A) the Closing Payment, in immediately available
funds to the account specified by the Company at least two
Business Days prior to the Initial Closing Date;
(B) the Note; and
(C) a pledge agreement (the "Pledge Agreement")
substantially in the form attached hereto as Exhibit B,
pursuant to which Pledge Agreement, among other things, the
Management Investor's obligations under the Note shall be
secured by a pledge of (i) the Shares, (ii) the shares of
Common Stock that may be acquired upon conversion of the
Shares (the "Underlying Common Shares"), and (iii) certain
other collateral described therein.
SECTION 3. Representations and Warranties of the Management Investor.
The Management Investor hereby represents and warrants to the Company as
follows:
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<PAGE>
(a) The Shares (and the Underlying Common Shares) to be purchased
by such Management Investor will be acquired for investment for the
Management Investor's own account and not with a view to the resale or
distribution of any part thereof, except in compliance with the provisions
of the Securities Act of 1933, as amended (the "Securities Act"), or an
exemption therefrom, and in compliance with the terms of this Agreement.
The Management Investor is a senior management employee of the Company and
is fully familiar with the business of the Company and with the risks
associated with the purchase of the Shares pursuant to this Agreement. The
Management Investor is an accredited investor as defined under Rule 501(a)
under the Securities Act.
(b) The Management Investor understands that the Shares and the
Underlying Common Shares are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under
such laws and applicable regulations such Shares (and the Underlying Common
Shares) may be resold without registration under the Securities Act only in
certain limited circumstances.
(c) The Management Investor further agrees that each certificate
representing the Shares (and the Underlying Common Shares) shall be stamped
or otherwise imprinted with a legend substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SUCH
SECURITIES HAVE BEEN REGISTERED UNDER THAT ACT OR AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON TRANSFER AND TO THE OTHER TERMS SET FORTH
IN THAT CERTAIN MANAGEMENT INVESTMENT AGREEMENT, DATED AS OF
______, 1999, AND BY THAT CERTAIN PLEDGE AGREEMENT, DATED AS
OF ______, 1999, BY AND AMONG THE COMPANY AND ________, A
COPY OF WHICH AGREEMENTS HAVE BEEN FILED WITH THE SECRETARY
OF THE COMPANY AND ARE AVAILABLE UPON REQUEST."
SECTION 4. Restrictions on Transfer of Shares. For a period commencing
on the Initial Closing Date and ending on the fifth anniversary of the Initial
Closing Date, the Management Investor may not sell, transfer, assign, pledge,
hypothecate or otherwise dispose of (each, a "transfer") any of the Shares (or
the Underlying Common Shares), without the prior express written consent of the
Company, provided, however, that the foregoing restriction on transfer shall not
apply (i) if Capital Z Beneficially Owns less than (A) fifty percent (50%) of
the number of shares of Senior Preferred Stock purchased by Capital Z on the
Initial Closing Date (the "Original Preferred Shares") or (B) if any Original
Preferred Shares shall thereafter have been
3
<PAGE>
converted into Common Stock, fifty percent (50%) of the sum of (x) the aggregate
number of shares Common Stock owned by Capital Z as a result of such
conversion(s) plus (y) the aggregate number of shares Common Stock into which
any remaining Original Preferred Shares owned by Capital Z may be converted
(determined without regard to any limitations on conversion of such shares prior
to the Recapitalization), in each case subject to adjustment for splits,
combinations, reclassifications and similar events; (ii) if the Management
Employee dies, retires, is terminated by the Company, or terminates his
employment with the Company, subject to the provisions of Section 5 hereof; or
(iii) a Change of Control (as defined in the New Option Plan) has occurred, but
only if a Capital Z Realization Event (as defined in the New Option Plan) has
also occurred on or prior to such Change of Control, and provided, further, that
notwithstanding the foregoing restriction on transfer, the Management Investor
may transfer, during the twelve-month period ending on the first anniversary of
the Initial Closing Date and during each succeeding twelve-month period, up to
25% of the total number of Underlying Common Shares (whether structured as a
transfer of Shares, Underlying Shares or a combination thereof) acquired
hereunder (subject to adjustment for splits, combinations, reclassifications and
similar events), it being further agreed that the Management Investor may
request the Company's Board of Directors to allow the Management Investor to
transfer Shares (or Underlying Common Shares) in excess of the 25% limitation
described in this proviso if extraordinary liquidity needs have arisen with
respect to the Management Investor, and, in such event, the Company (through its
Board of Directors) will consider such request in good faith and will not
unreasonably withhold its consent to a waiver of such limitation.
SECTION 5. Company's Option to Purchase Shares.
(a) In the event of the death or retirement from, or termination of
employment for any reason with, the Company of the Management Investor (a
"Termination Date"), the Company shall have the option, but not the obligation,
to purchase all, or any portion, of the Shares (and any Underlying Common Shares
that may have been acquired upon conversion of the Shares) then owned by the
Management Investor at the Fair Market Value (as hereinafter defined) per Share
and/or Underlying Common Share on the Business Day immediately prior to the date
on which the Company exercises its option to purchase in accordance with the
this Section 5. The Company may exercise the foregoing option at any time within
30 days after the Termination Date, by written notice to the Management
Investor, or his legal representative in the case of death, stating a date and
time for consummation of the purchase no less than 10 nor more than 30 days
after giving of such notice. "Fair Market Value" per Share or per Underlying
Common Share, as of any particular date, shall mean (a) in the case of a Share,
the product obtained by multiplying (I) the Formula Number (as defined in the
Certificate of Designations for the Senior Preferred Stock) in effect as of such
date by (II) the Current
4
<PAGE>
Market Price (as defined in the Certificate of Designations for the Senior
Preferred Stock) for the period of 15 consecutive Trading Days (as defined in
the Certificate of Designations for the Senior Preferred Stock) prior to such
date, or (b) in the case of an Underlying Share, the Current Market Price for
the period of 15 consecutive Trading Days prior to such date.
(b) At the closing of the purchase of Shares (and any Underlying
Common Shares) by the Company pursuant to Section 4(a), the Management Investor
will deliver the Shares (and any Underlying Common Shares) to the Company
against payment by the Company to the Management Investor of the purchase price
for such Shares (and any Underlying Common Shares). Such purchase price shall be
paid in cash, provided that if any principal or accrued but unpaid interest is
then outstanding under the Note, the cash portion of the purchase price shall be
reduced by the amount of such outstanding principal and accrued interest on the
Note (with such reduction being applied first to any accrued interest and then
to principal), and, if no principal or accrued interest is then remaining on the
Note, the Note shall be canceled.
SECTION 5. Termination. All rights and obligations of the parties
hereunder shall terminate upon the date upon which the Purchase Agreement is
terminated in accordance with its terms, provided, that any such termination
that results from the breach by a party of his or its obligations hereunder
shall not relieve such party from any liability for breach of this Agreement.
SECTION 6. Further Assurances. The Management Investor shall, upon
request of the Company, execute and deliver any additional documents and take
such further actions as may reasonably be deemed by the Company to be necessary
or desirable to carry out the provisions hereof.
SECTION 7. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be sufficiently given if sent by
registered or certified mail, postage prepaid, or overnight air courier service,
or telecopy or facsimile transmission (with hard copy to follow) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice): (i) if to the Company, to the address set forth in
Section 7.3 of the Purchase Agreement; and (ii) if to the Management Investor,
to the address set forth for the Management Investor in the preamble to this
Agreement or by telecopy to (___)_______.
SECTION 8. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9. Counterparts; Effectiveness. This Agreement may be executed
in two or more counterparts, all of which shall be considered one and the same
agreement and shall
5
<PAGE>
become effective when one or more counterparts have been signed by each of the
Company and the Management Investor and delivered to the Company and the
Management Investor.
SECTION 10. Entire Agreement. This Agreement (including the documents
and instruments referred to herein) constitutes the entire agreement, and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
SECTION 11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to any applicable conflicts of law principles of such State.
SECTION 12. Successors and Assigns. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the parties
without the prior written consent of the other parties. Any assignment in
violation of the foregoing shall be void.
SECTION 13. Enforcement. Each party agrees that irreparable damage
would occur and that the other party hereto would not have any adequate remedy
at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that each party shall be entitled to an injunction or
injunctions to prevent breaches by the other party hereto of this Agreement and
to enforce specifically the terms and provisions of this Agreement in any court
of the United States located in the State of Delaware or in Delaware State
court, this being in addition to any other remedy to which they are entitled at
law or in equity. In addition, each of the parties hereto (i) consents to submit
such party to the personal jurisdiction of any Federal court located in the
State of Delaware or any Delaware State court in the event any dispute arises
out of this Agreement or any of the transactions contemplated hereby, (ii)
agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iii)
agrees that such party will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a Federal
court sitting in the State of Delaware of in Delaware State court.
SECTION 14. Severability. If any term or provision hereof, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid or unenforceable with respect to
such jurisdiction, and only to such extent, and the remainder of the terms and
provisions hereof, and the application thereof to any other circumstance, shall
remain in full force and effect, shall not in any way be affected, impaired or
invalidated, and shall be
6
<PAGE>
enforced to the fullest extent permitted by law, and the parties hereto shall
reasonably negotiate in good faith a substitute term or provision that comes as
close as possible to the invalidated or unenforceable term or provision, and
that puts each party in a position as nearly comparable as possible to the
position each such party would have been in but for the finding of invalidity or
unenforceability, while remaining valid and enforceable.
SECTION 15. Amendment; Modification; Waiver. No amendment,
modification or waiver in respect of this Agreement shall be effective against
any party unless it shall be in writing and signed by such party.
SECTION 16. Expenses. The Company and the Management Investor shall
each bear their own legal fees and other costs and expenses with respect to the
negotiation, execution and delivery of this Agreement and consummation of the
transactions contemplated hereby.
7
<PAGE>
IN WITNESS WHEREOF, the Company and the Management Investor have
caused this Agreement to be duly executed and delivered as of the date first
written above.
AAMES FINANCIAL CORPORATION
By:________________________
Name:
Title:
MANAGEMENT INVESTOR:
___________________________
[Management Investor]
8
<PAGE>
EXHIBIT A TO
MANAGEMENT INVESTMENT AGREEMENT
(Other than Neil Kornswiet)
FORM OF
SECURED PROMISSORY NOTE
$________________ ________, 1999
FOR VALUE RECEIVED, [Management Employee] (the "Maker"), hereby promises
to pay to the order of Aames Financial Corporation, a Delaware corporation
("Aames"), 2 California Plaza, 350 South Grand Avenue, Los Angeles, CA 90071 or
such address as Aames shall have given to the Maker, the principal sum of
DOLLARS and 00/100 ($_______), plus interest, which shall accrue from the date
hereof, on the unpaid principal balance of this Note at such address, at the
rate of 6.5% per annum (computed on the basis of a 360-day year) until the
principal amount hereof has been repaid in full, on ________, 2004.
The Maker shall have the option to prepay the principal amount and
accrued interest on this Note, in whole or in part, at any time, without payment
of premium or penalty. During the period in which this Note is outstanding, the
Maker shall make an annual mandatory prepayment against the outstanding
principal balance of, and accrued interest on, this Note an amount equal to 25%
of the aggregate cash bonuses (if any) paid to Maker in respect of the fiscal
year ended immediately prior to such payment date, net of income taxes payable
thereon, such payments to be made within two business days after receipt of the
cash bonus paid at the end of such fiscal year and to be applied first, against
any accrued and unpaid interest on this Note and then, to the outstanding
principal balance of this Note. In addition, upon receipt by the Maker of any
proceeds from the transfer of the securities pledged under the Pledge Agreement
(as defined below) or dividends, interest payments or other distributions of
cash in respect of such pledged securities, the Maker shall make an immediate
prepayment in respect of the Note in an amount equal to the after tax amount of
such proceeds, dividends, payments or distributions, with such prepayments to be
applied first to the payment of all interest accrued on, and then to the payment
of unpaid principal of, this Note.
Payments of principal and interest shall be made in such currency of the
United States as at the time of payment shall be legal tender for the payment of
public and private debts.
Aames and the Maker have entered into a pledge agreement dated the date
hereof (the "Pledge Agreement") providing, among
<PAGE>
other things, for the securing of this Note by a pledge of the Pledged
Collateral (as defined in the Pledge Agreement).
If any of the following events (each, an "Event of Default") shall occur:
(a) the Maker shall default in the payment of any part of the principal
or interest on this Note when the same shall become due and payable, whether
at maturity, by acceleration or otherwise and such default continues for
more than 10 days after receipt of notice from Aames;
(b) the Maker's employment with Aames shall have ceased for any reason
whatsoever or for no reason, whether such cessation is voluntary or
involuntary, and regardless of whether the Maker may claim such cessation of
employment constitutes a wrongful termination of employment;
(c) the Maker shall (i) become insolvent or be unable, or admit in
writing his inability, to pay his debts as they mature; (ii) make a general
assignment for the benefit of creditors; (iii) be adjudicated as bankrupt or
insolvent or file a voluntary petition in bankruptcy; (iv) file a petition
or an answer seeking an arrangement with creditors to take advantage of any
insolvency law; or (v) file an answer admitting to the material obligations
or consent to, or default in answering, or fail to have dismissed within 60
days after the filing thereof, a petition filed against him in any
bankruptcy or insolvency proceeding; or
(d) any breach of the Maker's obligations under the Pledge Agreement
shall have occurred and be continuing or any representation or warranty made
thereunder shall be false in any material respect,
then, the holder of this Note may at any time by written notice to the
Maker, declare the entire unpaid principal of and the interest accrued on this
Note through the date of such Event of Default to be forthwith due and payable,
without other notices or demands of any kind, all of which are hereby waived by
the Maker.
The Maker agrees to pay to the holder hereof all expenses incurred by
such holder, including reasonable attorneys' fees, in enforcing and collecting
this Note.
The Maker hereby forever waives presentment, demand, presentment for
payment, protest, notice of protest, notice of dishonor of this Note and all
other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note.
This Note shall be paid without deduction by reason of any set-off,
defense or counterclaim of the Maker.
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<PAGE>
This Note shall be governed by and construed in accordance with the laws
of the State of New York, without giving effect to conflicts of law principles
thereof, shall be binding upon the heirs or legal representatives of the Maker
and shall inure to the benefits of the successors and assigns of Aames.
---------------------------------
[Management Investor]
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<PAGE>
EXHIBIT B TO MANAGEMENT INVESTMENT AGREEMENT
(Other than Neil Kornswiet)
FORM OF PLEDGE AGREEMENT
PLEDGE AGREEMENT ("Agreement"), dated as of _____, 1999, made by
[MANAGEMENT INVESTOR], an individual residing at ________ (the "Pledgor"), to
Aames Financial Corporation, a Delaware corporation ("Aames").
WHEREAS, on the date hereof, the Pledgor is purchasing shares of
Aames' Series C Convertible Preferred Stock, par value $0.001 per share ("Series
C Preferred Stock"), pursuant to a Management Investment Agreement, dated the
date hereof, between Pledgor and Aames (the "Management Investment Agreement");
and
WHEREAS, as part of the transactions contemplated by the
Management Investment Agreement, the Pledgor is executing and delivering to
Aames a Secured Promissory Note dated as of the date hereof in favor of Aames
(the "Aames Note") as part of the purchase price for the Series C Preferred
Stock, and (ii) in accordance with the terms and conditions set forth herein,
pledge the Series C Preferred Stock, together with any shares of Aames' common
stock, par value $0.001 per share that may be acquired upon conversion of the
Series C Preferred Stock (the "Underlying Common Shares, and, together with the
shares of Series C Preferred Stock, the "Pledged Shares").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and in order to induce Aames to accept
the Aames Note, the Pledgor hereby agrees as follows:
SECTION 1. Pledge. The Pledgor hereby pledges to Aames, and
grants to Aames a security interest in, the following (the "Pledged
Collateral"):
(i) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, cash, instruments and other property of
any character whatsoever (including, without limitation, shares of Common
Stock) from time to time received, receivable or otherwise distributed or
distributable in respect of or in exchange for any or all of the Pledged
Shares; and
(ii) all proceeds of any and all of the foregoing collateral
(including, without limitation, proceeds that constitute property of the
types described above).
SECTION 2. Security for Obligations. This Agreement secures the
payment of all obligations, whether for principal, interest, fees, expenses or
otherwise, now or hereafter existing, of the Pledgor under the Aames Note and
under this Agreement (all such obligations of the Pledgor being the
"Obligations").
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<PAGE>
Without limiting the generality of the foregoing, this Agreement secures the
payment of all amounts which constitute part of the Obligations and would be
owed by the Pledgor to Aames under the Aames Note or this Agreement but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Pledgor.
SECTION 3. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged Collateral shall be delivered
to and held by or on behalf of Aames pursuant hereto and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Aames. Aames shall have the right, at any time in its discretion
and without notice to the Pledgor, to transfer to or to have registered in the
name of Aames or any of its nominees any or all of the Pledged Collateral,
subject only to the revocable rights specified in Section 6(a). For the better
perfection of Aames's rights in and to the Pledged Collateral, the Pledgor shall
forthwith, upon the pledge of any Pledged Collateral hereunder, cause such
Pledged Collateral to be registered in the name of Aames or such nominee or
nominees of Aames as Aames shall direct, subject only to the revocable rights
specified in Section 6(a). In addition, Aames shall have the right at any time
to exchange certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger denominations.
SECTION 4. Representations and Warranties. The Pledgor represents
and warrants as follows:
(a) Neither the execution nor the delivery by the Pledgor of this
Agreement nor the consummation by the Pledgor of the transactions
contemplated hereby, nor compliance with nor fulfillment by the Pledgor
of the terms and provisions hereof, will conflict with or result in a
breach of the terms, conditions or provisions of or constitute a default
under any lease, contract, instrument, mortgage, deed of trust, trust
deed or deed to secure debt evidencing or securing indebtedness for
borrowed money, financing lease, law, rule, regulation, judgment, order,
award, decree or other restriction of any kind to which the Pledgor is a
party or by which he is bound.
(b) This Agreement has been duly executed and delivered by the
Pledgor and is the legal, valid and binding obligation of the Pledgor,
enforceable against the Pledgor in accordance with its terms.
(c) There is no action, lawsuit, claim, counterclaim, proceeding,
or investigation (or group of related actions, lawsuits, claims,
proceedings or investigations) pending or, to the knowledge of the
Pledgor, threatened, relating to or
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<PAGE>
challenging the Pledgor's obligations under this Agreement or the pledge
of the Pledged Collateral hereunder.
(d) The Pledgor is the legal and beneficial owner of the Pledged
Collateral free and clear of any lien, security interest, option or
other charge or encumbrance except for the security interest created by
this Agreement.
(e) The pledge of the Pledged Shares pursuant to this Agreement
creates a valid and perfected first priority security interest in the
Pledged Collateral, securing the payment of the Obligations.
(f) No consent of any other person or entity and no
authorization, approval, or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required (i) for
the pledge by the Pledgor of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this
Agreement by the Pledgor, (ii) for the perfection or maintenance of the
security interest created hereby (including the first priority nature of
such security interest) or (iii) for the exercise by Aames of the voting
or other rights provided for in this Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Agreement (except as
may be required in connection with any disposition of any portion of the
Pledged Collateral by laws affecting the offering and sale of securities
generally).
(g) There are no conditions precedent to the effectiveness of the
Pledgor's obligations under this Agreement that have not been satisfied
or waived.
SECTION 5. Further Assurances. (a) The Pledgor agrees that at any
time and from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Aames may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable Aames to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Collateral.
(b) The Pledgor hereby authorizes Aames to file one or more
financing or continuation statements, and amendments thereto, relating to all or
any part of the Pledged Collateral without the signature of the Pledgor where
permitted by law. A photocopy or other reproduction of this Agreement or any
financing statement covering the Pledged Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
SECTION 6. Voting Rights; Dividends, Etc. (a) so long as no Event
of Default (as defined in the Aames Note) or
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event which, with the giving of notice or the lapse of time, or both, would
become such an Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise or refrain from
exercising any and all voting and other consensual rights pertaining to
the Pledged Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the Aames Note;
provided, however, that the Pledgor shall not exercise or refrain from
exercising any such right if, in Aames's judgment, such action would
have a material adverse effect on the value of the Pledged Collateral or
any part thereof.
(ii) The Pledgor shall be entitled to any and all dividends paid
in respect of the Pledged Collateral; provided, however, that any and
all dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of or in exchange for, any Pledged Collateral,
shall be, and shall be forthwith delivered to Aames to hold as, Pledged
Collateral and shall, if received by the Pledgor, be received in trust
for the benefit of Aames, be segregated from the other property or funds
of the Pledgor, and be forthwith delivered to Aames as Pledged
Collateral in the same form as so received (with any necessary
endorsement or assignment); and provided, further, that the after tax
amount of any cash dividends, proceeds, or other distributions paid in
respect of the Pledged Collateral shall be applied as an immediate
prepayment in respect of the Aames Note, with such prepayments to be
applied first to the payment of all interest accrued on, and then to the
payment of unpaid principal of, the Aames Note.
(iii) Aames shall execute and deliver (or cause to be executed
and delivered) to the Pledgor all such proxies and other instruments as
the Pledgor may reasonably request for the purpose of enabling the
Pledgor to exercise the voting and other rights which it is entitled to
exercise pursuant to paragraph (i) above and to receive the dividends
which it is authorized to receive and retain pursuant to paragraph (ii)
above.
(b) Upon the occurrence and during the continuance of an Event of
Default or an event which, with the giving of notice or the lapse of time, or
both, would become an Event of Default:
(i) All rights of the Pledgor (x) to exercise or refrain from
exercising the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section 6(a)(i) shall,
upon notice to the Pledgor by Aames, cease and (y) to receive the
dividends payments which it would otherwise be authorized to receive and
retain pursuant to Section 6(a)(ii) shall automatically
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cease, and all such rights shall thereupon become vested in Aames (or
its designee), who shall thereupon have the sole right to exercise or
refrain from exercising such voting and other consensual rights and to
receive and hold as Pledged Collateral such dividends.
(ii) All dividends which are received by the Pledgor contrary to
the provisions of paragraph (i) of this Section 6(b) shall be received
in trust for the benefit of Aames, shall be segregated from other funds
of the Pledgor and shall be forthwith paid over to Aames as Pledged
Collateral in the same form as so received (with any necessary
endorsement).
SECTION 7. Transfers and Other Liens. The Pledgor agrees that it
will not (i) sell, assign (by operation of law or otherwise) or otherwise
dispose of, or grant any option with respect to, any of the Pledged Collateral
or (ii) create or permit to exist any lien, security interest, option or other
charge or encumbrance upon or with respect to any of the Pledged Collateral,
except for the security interest under this Agreement and except for any such
sale the proceeds from which are used to repay all unpaid principal of, and
accrued interest on, the Aames Note (with such proceeds first being applied to
accrued interest and then to principal).
SECTION 8. Appointment of Attorney-in-Fact. The Pledgor hereby
appoints [_______] the Pledgor's attorney-in-fact, with full authority in the
place and stead of the Pledgor and in the name of the Pledgor or otherwise, from
time to time in Aames's discretion to take any action and to execute any
instrument that Aames may deem necessary or advisable to accomplish the purposes
of this Agreement (subject to the rights of the Pledgor under Section 6),
including, without limitation, to receive, indorse and collect all instruments
made payable to the Pledgor representing any dividend or other distribution in
respect of the Pledged Collateral or any part thereof and to give full discharge
for the same.
SECTION 9. Aames May Perform. If the Pledgor fails to perform any
agreement contained herein and does not cure such failure within 10 days after
its receipt of written notice from Aames, Aames may itself perform, or cause
performance of, such agreement, and the expenses of Aames incurred in connection
therewith shall be payable by the Pledgor under Section 12.
SECTION 10. Aames' Duties. The powers conferred on Aames
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the safe
custody of any Pledged Collateral in its possession and the accounting for
moneys actually received by it hereunder, Aames shall have no duty as to any
Pledged Collateral as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or
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other matters relative to any Pledged Collateral, whether or not Aames has or is
deemed to have knowledge of such matters, or as to the taking of any necessary
steps to preserve rights against any parties or any other rights pertaining to
any Pledged Collateral. Aames shall be deemed to have exercised reasonable care
in the custody and preservation of any Pledged Collateral in its possession if
such Pledged Collateral is accorded treatment substantially equal to that which
Aames accords its own property.
SECTION 11. Remedies upon Default. If any Event of Default shall
have occurred and be continuing:
(a) Aames may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code in effect in the State of
Delaware at that time (the "Code") (whether or not the Code applies to
the affected Collateral), and may also, without notice except as
specified below, sell the Pledged Collateral or any part thereof in one
or more parcels at public or private sale, at any exchange or broker's
board or elsewhere, for cash, on credit or for future delivery, and upon
such other terms as Aames may deem commercially reasonable. The Pledgor
agrees that, to the extent notice of sale shall be required by law, at
least ten days' notice to the Pledgor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. Aames shall not be obligated to make
any sale of Pledged Collateral regardless of notice of sale having been
given. Aames may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) Any cash held by Aames as Pledged Collateral and all cash
proceeds received by Aames in respect of any sale of, collection from or
other realization upon all or any part of the Pledged Collateral may, in
the discretion of Aames, be held by Aames as collateral for, and/or then
or at any time thereafter be applied (after payment of any amounts
payable to Aames pursuant to Section 12) in whole or in part by Aames
against, all or any part of the Obligations in such order as Aames shall
elect. Any surplus of such cash or cash proceeds held by Aames and
remaining after payment in full of all the Obligations shall be paid
over to the Pledgor or to whomsoever may be lawfully entitled to receive
such surplus.
SECTION 12. Expenses. The Pledgor will upon demand pay to Aames
the amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which Aames may incur in
connection with
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(i) the exercise or enforcement of any of the rights of Aames hereunder or (ii)
the failure by the Pledgor to perform or observe any of the provisions hereof.
SECTION 13. Security Interest Absolute. The obligations of the
Pledgor under this Agreement are independent of the Obligations, and a separate
action or actions may be brought and prosecuted against the Pledgor to enforce
this Agreement. All rights of Aames and security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the Aames Note any
other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations, or any other amendment
or waiver of or any consent to any departure from the Aames Note;
(iii) any taking, exchange, release or nonperfection of any other
collateral, or any taking, release or amendment or waiver of or consent
to departure from any guaranty, for all or any of the Obligations;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations, or any manner of sale or
other disposition of any collateral for all or any of the Obligations or
any other assets of the Pledgor;
(v) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor.
SECTION 14. Amendments, Etc. No amendment or waiver of any
provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed by the parties hereto, and no consent to any
departure by one party herefrom, shall in any event be effective unless the same
shall be in writing and signed by the other party, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 15. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and sent by express courier, telecopied, telegraphed,
telexed or hand-delivered, if to the Pledgor, at his address first set forth
above; and, if to Aames, at its address at 2 California Plaza, 350 South Grand
Avenue, Los Angeles, CA 90071, Attention: Cary Thompson; or, as to each party,
at such other address as shall be designated by such party in a written notice
to the other party.
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<PAGE>
All such notices and communications shall, when sent by express courier, be
effective three days after being sent, when telecopied, telegraphed, telexed or
hand-delivered, be effective when telecopied, delivered to the telegraph
company, confirmed by telex answerback or delivered, respectively.
SECTION 16. Continuing Security Interest; Assignments Under Aames
Note. This Agreement shall create a continuing security interest in the Pledged
Collateral and shall (i) remain in full force and effect until the payment in
full of the Obligations and all other amounts payable under this Agreement, (ii)
be binding upon the Pledgor, its successors and assigns and (iii) inure to the
benefit of, and be enforceable by, Aames and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause (iii), Aames
may assign or otherwise transfer all or any portion of its rights and
obligations under the Aames Note to any other person or entity, and such other
person or entity shall thereupon become vested with all the benefits in respect
thereof granted to Aames herein or otherwise. Upon the payment in full of the
Obligations and all other amounts payable under this Agreement, the security
interest granted hereby shall terminate and all rights to the Pledged Collateral
shall revert to the Pledgor. Upon any such termination, Aames will, at the
Pledgor's expense, return to the Pledgor such of the Pledged Collateral as shall
not have been sold or otherwise applied pursuant to the terms hereof and execute
and deliver to the Pledgor such documents as the Pledgor shall reasonably
request to evidence such termination.
SECTION 17. Governing Law; Terms. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
DELAWARE. Unless otherwise defined herein or in the Aames Note, terms defined in
Article 9 of the Code are used herein as therein defined.
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<PAGE>
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
______________________________
ACKNOWLEDGED AND AGREED:
AAMES FINANCIAL CORPORATION
By:_________________________
Name:
Title:
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Exhibit J
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is between Aames Financial
Corporation, a Delaware corporation (the "Company"), and Neil B. Kornswiet (the
"Executive"). This Agreement shall become effective (the "Effective Date") on
the "Initial Closing Date," as such term is defined in the Purchase Agreement
(defined below).
BACKGROUND
----------
A. As of the Effective Date, the Company is or will be engaged
primarily in originating, selling and servicing home mortgage loans.
B. The Executive is currently a stockholder and officer of the
Company, and as part of the closing (the "Closing") under the Preferred Stock
Purchase Agreement by and among the Company and Capital Z Financial Services
Fund II, L.P. ("Purchaser"), dated the 23rd day of December, 1998 (the "Purchase
Agreement"), the Company has agreed that, after the Effective Date, the Company
will continue to employ the Executive to provide services for the benefit of the
Company on the terms of this Agreement. If the Closing does not occur, this
Agreement shall have no force or effect and the Employment Agreement dated
August 26, 1998 shall remain in force.
C. In exchange for the benefits provided for under this Agreement,
except as otherwise specifically provided in this Agreement or in Exhibit A
hereto, as of the Effective Date, the Executive hereby waives any and all rights
and benefits accruing under all other employment, change in control, and any and
all other agreements between Executive and the Company and its subsidiaries that
provide for the payment of compensation or benefits to Executive, other than (i)
benefits provided under the Company's 401(k) plan, (ii) benefits continued
pursuant to Section 3C hereof, and (iii) stock options granted under the Aames
Financial Corporation 1997 Non-Qualified Stock Option Plan, as Amended and
Restated Effective May 22, 1998, the Aames Financial Corporation 1997 Stock
Option Plan, the Aames Financial Corporation 1996 Stock Incentive Plan, as
amended, the Aames Financial Corporation 1995 Stock Incentive Plan, the Aames
Financial Corporation 1991 Stock Incentive Plan and under those certain
assumption option agreements entered into by the Company in connection with its
acquisition of One Stop Mortgage, Inc., pursuant to an Agreement dated August
12, 1996, which, to the extent practicable, will be modified to provide for
transfer to the Executive in the event they are forfeited by the original
grantees after August 12, 1996, provided that the Executive shall in no event
acquire greater rights under such assumption options than those held by the
optionees to whom they were originally issued, all of which options shall be
preserved.
<PAGE>
In consideration of the foregoing and the mutual agreements set forth below, the
parties agree as follows:
AGREEMENT - PRINCIPAL TERMS
---------------------------
1. Employment and Duties. The Company shall employ the Executive as its
President responsible for day to day operation of the Company and its
subsidiaries, and the Executive accepts such employment on the terms and
conditions of the Agreement. The Executive shall, while this Agreement remains
in effect, have the duties, responsibilities, powers, and authority customarily
associated with such position. The Executive shall report to, and follow the
direction of, the Board of Directors of the Company (the "Board"). During each
year of the Term (as hereinafter defined), the Company shall nominate the
Executive for election as a member of the Board. In addition, the Executive also
shall perform such other and unrelated services and duties as the Board may
assign to him. The Executive shall diligently, competently, and faithfully
perform all duties, and shall devote his entire business time, energy,
attention, and skill to the performance of duties for the Company and its
affiliates and will use his best efforts to promote the interests of the Company
and its affiliates.
2. Term of Employment. Unless sooner terminated as provided in this
Agreement, the initial term under this Agreement shall be five (5) years,
starting on the Effective Date (the "Initial Term"). The term of employment
shall be renewed automatically for successive periods of one (1) year each (a
"Renewal Term") after the expiration of the Initial Term and any subsequent
Renewal Term, unless the Board provides the Executive, or the Executive provides
the Board, with written notice to the contrary at least one hundred twenty (120)
days prior to the end of the Initial Term or any Renewal Term. The Initial Term
and the Renewal Terms are referred to collectively as "Terms."
3. Compensation.
A. Salary. The Company shall pay the Executive an annual salary of
$600,000 (the "Base Salary"), payable in substantially equal installments in
accordance with the Company's payroll policy. The amount of Base Salary payable
to Executive shall be reviewed at least annually; provided, however, that
Executive's Base Salary shall not be reduced below $600,000 per annum during the
term of this Agreement.
B. Performance Bonus; Other Limitations. The Executive shall be
entitled to annual cash bonuses, and other extraordinary compensation and
benefits on the basis outlined in Exhibit A. The covenants set forth in Exhibit
A shall be binding upon the parties to the same extent as if set forth herein.
C. Automobile. The Company's current policy with regard to the
provision of an automobile to the Executive shall
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>
be maintained during the Term until such time as the Compensation Committee of
the Board determines otherwise and provides other benefits not materially less
favorable to Executive.
D. Vacation. Executive shall be entitled to 5 weeks of paid vacation
each year of employment with the Company for the term of this Agreement. In each
case, such entitlement shall accrue pro rata over the contract year and shall be
taken at such time or times as shall not unreasonably interfere with the
operations of the Company.
E. Insurance. During the Term, the Company shall maintain, at no
cost to Executive, directors and officers liability insurance that covers the
Executive in an amount of not less than $45,000,000.
F. Stock Options. The Company shall grant to the Executive on the
Effective Date an option to purchase 3,214,642 million shares of the Company's
common stock pursuant to and subject to the provisions of the Company's 1999
Stock Option Plan. Such option shall be subject to the terms of an option
agreement substantially in the form annexed hereto as Exhibit B.
G. Other Benefits. While this Agreement remains in effect, the
Company shall continue to provide the Executive with (i) not less than
$2,000,000 of standard term life insurance; (ii) medical and dental benefits for
the Executive and his dependents substantially comparable to that provided
immediately prior to the execution of this Agreement; (iii) a long-term
disability policy providing for payments in an amount equal to 60% of the
Executive's Base Salary, provided such a policy may be obtained at reasonable
cost; and (iv) the Executive shall participate in such other savings, pension
and retirement plans and other benefit plans or programs maintained by the
Company for the benefit of its executives.
4. Expenses. The Company shall reimburse the Executive for all
reasonable business expenses, that are incurred in accordance with the Company's
policies as in effect from time to time, provided the Executive submits
appropriate receipts or other documentation acceptable to the Company and as
required by the Internal Revenue Service to qualify as ordinary and necessary
business expenses under the Internal Revenue Code of 1986, as amended.
5. Termination. Notwithstanding anything in Paragraph 2 of this
Agreement to the contrary, the term of this Agreement and Executive's services
under this Agreement shall terminate upon the first to occur of the following
events:
A. At the end of the applicable Term of this Agreement, including
any Renewal Terms.
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B. Upon the Executive's date of death or the date the Executive is
given written notice that the Company has properly determined that he is
disabled. For purposes of this Agreement, the Executive shall be properly deemed
to be disabled if the Executive, as a result of illness or incapacity, shall be
unable to perform substantially his required duties for a period of 120
consecutive days or for any aggregate period of 183 days in any twelve (12)
month period. The Company shall notify the Executive that his employment has
been terminated by written notice. The termination shall be effective on the
tenth (10th) business day after the Executive receives the notice, unless the
Executive returns to full-time performance of his duties before such tenth
(10th) business day.
C. On the date the Company provides the Executive with written
notice that he is being terminated for "cause." For purposes of this Agreement,
and as reasonably determined by the Company, the Executive shall be deemed
terminated for cause if the Company terminates the Executive after finding that
the Executive: (1) shall have been determined by a court of law to have
committed any felony including, but not limited to, a felony involving fraud,
theft, misappropriation, dishonesty, embezzlement, or any other crime involving
moral turpitude, or if the Executive shall have been arrested or indicted for
violation of any criminal statute constituting a felony, provided the Company
reasonably determines that the continuation of the Executive's employment after
such event would have an adverse impact on the operation or reputation of the
Company or its affiliates (subsequent references to the "Company" in this
Paragraph 5C shall be deemed to refer to the Company or its affiliates); (2)
shall have committed one or more acts of gross negligence or willful misconduct,
either within or outside of the scope of his employment that, in the good faith
opinion of the Board, materially impair the goodwill or business of the Company
or cause material damage to its property, goodwill, or business, or would, if
known, subject the Company to public ridicule; (3) shall have refused or failed
to a material degree to perform his duties hereunder (continuing without cure
for ten (10) days after receipt of written notice of need to cure); (4) shall
have violated any material written Company policy provided to the Executive
during or prior to the Term (continuing without cure for ten (10) days after
receipt of written notice of need to cure) and that has caused material harm to
the Company; or (5) knew, or should have known, that the Company materially, and
knowingly or intentionally breached any representation, warranty, or covenant
under the Purchase Agreement, or that the Executive shall have materially and
knowingly or intentionally breached any provision this Agreement; provided,
however, that no termination of Executive's employment for Cause shall be deemed
to have occurred unless Executive is given notice of the reason therefore
including the allegations which may constitute reason for such termination and
after (a) Executive is provided an opportunity to be heard by the Board or the
Executive Committee thereof, and (b)
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such decision has been upheld by the Board or Executive Committee.
D. On the date the Executive terminates his employment for "Good
Reason." For purposes of this Agreement, "Good Reason" shall mean termination by
the Executive within ninety (90) days of learning of the acts which are the
basis for alleging Good Reason, because of the occurrence of any of the
following acts, without the Executive's consent: (1) he has been demoted to a
position of materially less stature or importance within the Company than the
position described in Paragraph 1, (2) he has been assigned to duties that are
of materially less importance than, or materially inconsistent with, those
required to be performed pursuant to Paragraph 1 of this Agreement, (3) the
Company has failed to pay or provide material compensation or benefits that are
required to be provided by this Agreement, or (4) the Company's principal
executive offices have been relocated to any county other than Los Angeles
County, CA or Orange County, CA, provided that no such termination shall be
treated as for Good Reason unless the Executive shall have given the Company
thirty (30) days advance written notice of his intention to terminate his
employment for Good Reason, and the Company shall have failed to cure such acts
within such thirty (30) day period.
E. On the date the Executive terminates his employment for any
reason, other than Good Reason, provided that the Executive shall give the
Company thirty (30) days written notice prior to such date of his intention to
terminate this Agreement.
F. On the date the Company terminates the Executive's employment for
any reason, other than a reason otherwise set forth in this Paragraph 5. Any
purported termination of the Executive's employment for Cause which is finally
determined to be without Cause shall be treated for all purposes of this
Agreement as a termination pursuant to this Paragraph 5F.
6. Compensation Upon Termination. If the Executive's services are
terminated pursuant to Paragraph 5, the Executive shall be entitled to the Base
Salary through his final date of active employment, plus any accrued but unused
vacation pay. If the Executive's services are terminated pursuant to Paragraph
5D or 5F, the Executive shall in addition be entitled to receive severance
benefits for a period of 12 months payable in substantially equal installments
in accordance with the Company's payroll policy, in an amount equal to (i) $2
million, if such termination occurs within one year from the Effective Date,
(ii) $1.5 million, if such termination occurs after the first and on or before
the second anniversary of the Effective Date, (iii) $1.0 million, if such
termination occurs after the second and on or before the third anniversary of
the Effective Date, (iv) $0.5 million, if such termination occurs after the
fourth anniversary of the Effective Date, and (v), plus an amount, if any,
(regardless of the date of termination) necessary to reimburse
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the Executive on a net after-tax basis for any applicable federal excise tax,
provided in each case the Executive signs an agreement that releases the Company
from actions, suits, claims, proceedings, and demands related to the period of
employment and/or termination of employment. Executive agrees that if his
employment is terminated for any reason, he shall immediately resign from all
officer and director positions he then holds with the Company and each of its
parents, affiliates and subsidiaries.
7. Offset. In the event that severance benefits become payable to the
Executive pursuant to Paragraph 6 above, such benefits, to the extent not
theretofore paid, shall be reduced, on a dollar-for-dollar basis, by (i) any
outstanding amounts owed by Executive to the Company and (ii) the amount of any
compensation for services earned by Executive on account of his employment or
consulting services with another business or on account of his self employment,
from any source, whether paid currently or deferred. In such event, Executive
shall cooperate with the Company and shall provide such information to the
Company as it may reasonably require in order to calculate the amount of the
reduction described above.
8. COBRA. If the Executive's services are terminated pursuant to
Paragraph 5, the Executive shall also be entitled to any benefits mandated under
the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") or required
under the terms of any death, insurance, or retirement plan, program, or
agreement provided by the Company and to which the Executive is a party or in
which the Executive is a participant, including, but not limited to, any
short-term or long-term disability plan or program, if applicable. If the
Executive elects COBRA continuation coverage, the Company shall pay for such
health insurance coverage for the shorter of 12 months or the remaining Term at
the same rate as it pays for health insurance coverage for its active employees
(with the Executive required to pay for any employee-paid portion of such
coverage). After the expiration of the period set forth in the prior sentence
concludes, the Executive shall be responsible for the payment of all further
premiums attributable to COBRA continuation coverage at the same rate as the
Company charges all COBRA beneficiaries. However, no provision of this Agreement
shall be construed to extend the period of time over which such COBRA
continuation coverage is required to be provided to the Executive and/or his
dependents.
9. Arbitration. Any dispute between the parties hereto respecting the
meaning and intent of this Agreement or any of its terms and provisions shall be
submitted for expedited arbitration in Los Angeles, California, in accordance
with the National Rules of the American Arbitration Association for the
Resolution of Employment Disputes then in effect, and the arbitration
determination resulting from any such submission shall be final and binding upon
the parties hereto. Judgment upon any arbitration award may be entered in any
court of competent
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<PAGE>
jurisdiction. The parties further agree that either party may at any time seek
provisional relief, including, but not limited to a temporary restraining order
or a preliminary injunction, from any state or federal court in California, in
connection with any dispute being submitted for arbitration.
10. Exclusive Employment; Confidentiality; Non-Solicitation.
A. Executive agrees to perform his duties, responsibilities and
obligations hereunder efficiently and to the best of his ability. Executive also
agrees that he will not engage in any other business activities, pursued for
gain, profit or other pecuniary advantage, that are competitive with the
activities of the Company. Executive agrees that all of his activities as an
employee of the Company shall be in conformity with all present and future
policies, rules and regulations and directions of the Company not inconsistent
with this Agreement.
B. Executive acknowledges that his employment by the Company will
bring him into close contact with many trade secrets and other confidential
affairs of the Company and its clients and customers, including, without
limitation, non-public information pertaining to ideas, knowledge, operations,
computer hardware and software, systems, costs, profits, markets, sales,
products, programs, interfaces, networks, protocols, data bases, key personnel,
pricing policies, operational methods, concepts, data, equipment, models,
compensation, suppliers, servicing, broker lists, customer lists, customers,
potential customers, rate sheets, plans, concepts, strategies, or products,
advertising, technical processes and applications and other business affairs and
methods, plans for future developments and other information not readily
available to the public or the Company's competitors or clients (collectively
referred to hereinafter as "Information"). In consideration of the foregoing,
the Executive agrees that he: (1) will keep secret and confidential all
Information and will not use it for his own benefit or disclose it to, or use it
for the benefit of, anyone other than the Company, either during or after his
employment by the Company, except with the prior written consent of the Company;
(2) will take all reasonable action that the Company deems necessary or
appropriate to prevent unauthorized use or disclosure of or to protect the
Company's interest in Information; (3) will deliver promptly to the Company upon
termination of his employment by the Company or at any other time the Company
may so request, all memoranda, notes, documentation, equipment, files,
flowcharts, program listings, data listings, records, reports and other tangible
manifestations of the Information (and all copies thereof), that he may then
possess or have under his control; and (4) will, unless the Company otherwise
agrees in writing, and without additional compensation, promptly disclose and,
upon request, assign to the Company all rights to work product and business
opportunities related to the present or, to the extent
- 7 -
<PAGE>
presented to the Board of Directors prior to termination of employment,
contemplated business of the Company.
C. Executive further agrees that if his employment is terminated
during the three year period beginning on the Effective Date, he will abide by
the limitations set forth in the following sentence (i) for a period of six
months from the date of termination, if his employment is terminated pursuant to
Paragraph 5B, 5D or 5F, and (ii) for a period of one year from the date of
termination, if his employment is terminated by the Company pursuant to
Paragraph 5C or if his employment is terminated by the Executive without Good
Reason (the applicable period is referred to below as the "Nonsolicitation
Period"). During the Nonsolicitation Period, the Executive agrees that he will
not, without the Company's express written consent, himself or through any
organization with which he is associated: (i) hire any person who was employed
by the Company on the Executive's date of termination of employment or at any
time within six months prior thereto, or hire any agent, consultant, or
independent contractor of the Company, or of any organization with respect to
which the Company has agreed to a similar prohibition and of which the Employee
has knowledge, or induce or attempt to induce any such person to discontinue
such employment or affiliation with the Company or such organization, as the
case may be, or (ii) induce or attempt to induce any client or customer of the
Company on the date of termination to discontinue any business relationship or
to refrain from entering into a new business relationship with the Company.
D. Executive confirms and acknowledges that (i) he was represented
by counsel of his own choosing during the negotiation of the limitations set
forth in Paragraphs 10 and 11 of this Agreement, (ii) his strict adherence to
the limitations imposed upon him thereunder, or under any agreement referenced
therein, was a material factor in Purchaser's entering into the Purchase
Agreement and agreeing to consummate the transactions contemplated thereby, and
to pay the Executive the cash and equity-based compensation called for in this
Agreement, (iii) the Company's ability to maintain continuing relationships with
its employees without disruption was a material factor in Purchaser's entering
into the Purchase Agreement and agreeing to consummate the transactions
contemplated thereby, (iv) his failure to adhere to the obligations imposed by
Paragraphs 10 and 11 of this Agreement will expose such Purchaser to substantial
and irreparable harm. Accordingly, Executive agrees that the remedy at law for
any breach by him of the covenants and agreements set forth in this Paragraph 10
or in Paragraph 11 below may be inadequate and that in the event of any such
breach, the Company or its respective subsidiaries may, in addition to the other
remedies that may be available to it at law, seek injunctive relief prohibiting
him (together with all those persons associated with him) from breach of such
covenants and agreements.
- 8 -
<PAGE>
11. Non-Competition. Executive reconfirms and acknowledges his duties
and obligations under the Non-Compete Agreement dated August 28th, 1996. The
Company agrees to release him from such obligations on the earlier to occur of
(x) the expiration of any Nonsolicitation Period referred to in Section 10(c)
hereof, and (y) the third anniversary of the Effective Date.
AGREEMENT - MISCELLANEOUS
-------------------------
12. Entire Agreement. This Agreement sets forth the entire and final
agreement and understanding of the Company and the Executive and contains all of
the agreements made between them with respect to the subject matter hereof. This
Agreement supersedes any and all other agreements, either oral or in writing,
between the Company and the Executive with respect to Executive's provision of
services to the Company. No change or modification of this Agreement shall be
valid unless in writing and signed by the Company and the Executive.
13. Enforcement; Severability. Should a decision be entered by a court
of competent jurisdiction that the character, duration or geographical scope of
any provision of this Agreement is unreasonable, or that any provision of this
Agreement is invalid or unenforceable for any reason, in whole or in part, then
the Company and the Executive agree that such provision shall be construed by
the court in such a manner as to impose all those restrictions on the
Executive's conduct set forth in this Agreement or in the Non-Compete Agreement
dated August 28, 1996 that are reasonable in light of the circumstances and as
are necessary to assure to the Company the benefits of this Agreement and to
render the provision valid and enforceable, and this Agreement shall be
construed and enforced to the maximum extent permitted by law, as if such
provision had been originally incorporated in this Agreement as so modified,
restricted, or reformulated or as if such provision had not been originally
included in this Agreement, as the case may be. The parties further agree to
seek a lawful substitute for any provision found to be unlawful; provided, that,
if the parties are unable to agree upon a lawful substitute, the parties desire
and request that the arbitrator or other authority called upon to decide the
enforceability of this Agreement modify those provisions such that, once
modified, this Agreement will be enforceable to the maximum extent permitted by
the law in existence at the time of the requested enforcement.
14. Miscellaneous.
A. Notices. All notices required in connection with this Agreement
shall be sufficiently given only if transmitted in writing and (i) personally
delivered, or sent by first class, registered or certified mail, return receipt
requested, postage prepaid, or by recognized overnight courier, (ii) sent by
facsimile, provided a hard copy is mailed on that date to the party for whom
such notices are intended, or (iii) sent by other
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<PAGE>
means at least as fast and reliable as first class mail. A written notice shall
be deemed to have been given to the recipient party on the earliest of (1) the
date it shall be delivered to the address required by this Agreement; (2) the
date delivery shall have been refused at the address required by this Agreement;
(3) with respect to notices sent by mail or overnight courier, the date as of
which the Postal Service or overnight courier, as the case may be, shall have
indicated such notice to be undeliverable at the address required by this
Agreement; or (4) with respect to a facsimile, the date on which the facsimile
is sent and receipt is confirmed. Any and all notices referred to in this
Agreement, or which either party desires to give to the other shall, in the case
of the Executive, be addressed to the residence address given to the Company by
the Executive in writing for this purpose, or failing receipt of such notice, to
the last residence address on the Company's records, or in the case of the
Company, to its principal office with a copy to Capital Z's principal office.
B. Waiver of Breach. A waiver by the Company of a breach of any
provision of this Agreement by the Executive shall not operate or be construed
as a waiver of any subsequent breach by the Executive. No waiver shall be valid
unless it is in writing and signed by an authorized officer of the Company
(other than the Executive).
C. Assignment. The Executive acknowledges that the services he is to
render are unique and personal. Accordingly, the Executive may not assign any of
his rights or delegate any of his duties or obligations under this Agreement.
The rights and obligations of the Company under this Agreement shall inure to
the benefit of and shall be binding upon the successors and assigns of the
Company.
D. Construction. The heading in this Agreement are inserted for
convenience only and are not to be considered a construction of the provisions
hereof. The Background recitals are incorporated in this Agreement as an
integral part hereof and shall be considered as substantive and not precatory
language.
E. Execution of Agreement. This Agreement may be executed in several
counterparts, each of which shall be considered an original, but which when
taken together, shall constitute one agreement.
F. Governing Law. This agreement shall be construed in accordance
with the laws of the State of California.
COMPANY: EXECUTIVE:
By____________________________________ __________________________________
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<PAGE>
EXHIBIT A
---------
* Within two weeks of the Effective Date, Company shall pay Executive
$1,460,000, such amount being in full and complete satisfaction of all
amounts owed Executive in respect of his June 1998 bonus accrued by the
Company.
* Subject to execution by the Executive of the promissory note attached hereto
as Exhibit C, the Company shall pay Executive a guaranteed cash bonus for
the 1999 calendar year (the "1999 Bonus"), such bonus to be paid within two
weeks following the Effective Date, in an amount equal to $540,000. The 1999
Bonus shall be paid in the form of a recourse loan, which shall be forgiven
and treated as paid in full so long as Executive remains employed by the
Company through the first anniversary of the Effective Date, or through the
date of any earlier termination of Executive's employment under Paragraphs
5B, 5D or 5F of the Employment Agreement. Executive to receive a cash
supplemental bonus for his first year of employment of $300,000, such bonus
to be paid within 2-1/2 months after the first anniversary of the Effective
Date, subject to the Board's determination that the Company has completed a
satisfactory program of cost reductions by such anniversary date (the "1999
Supplemental Bonus").
* For bonuses after the 1999 calendar year, Executive shall receive a cash
bonus paid annually on a calendar year basis ranging from 0-100% of total
Base Salary, with an expected bonus of $400,000, and a bonus in excess of
100% of Base Salary for extraordinary performance. Bonuses shall be paid
according to a budget approved by the Board of Directors of the Company and
the achievement of other non-financial goals adopted by such Board.
* Subject to execution by the Executive of the promissory note attached hereto
as Exhibit I-2 to the Management Investment Agreement, the Company shall
loan Executive an amount equal to the purchase price of 100% of his pro-rata
ownership position in the shareholders rights offering (the "Rights Offering
Advance"). The Rights Offering Advance shall be in the form of a loan, which
shall be nonrecourse provided Executive remains employed by the Company
through the first anniversary of the Effective Date, or through the date of
any earlier termination of Executive's employment under Paragraph 5B, 5D or
5F of the Employment Agreement.
* For so long as Capital Z and/or its Designated Purchasers under the Purchase
Agreement own at least 25% of the outstanding voting securities of the
Company, Executive covenants and agrees not to sell, assign or otherwise
transfer, during his employment with the Company, in any one twelve month
period, more than 25% of the aggregate amount of
A-1
<PAGE>
shares of Company stock which the Executive owned immediately prior to the
Effective Date. The Company, by action of its Board of Directors, agrees to
consider whether to waive all or part of such limitation in the event of
extraordinary hardship, which consent shall not be unreasonably withheld.
A-2
<PAGE>
Exhibit B
MODEL OPTION AGREEMENT
NON-QUALIFIED
STOCK OPTION AGREEMENT
UNDER THE
1999 AAMES FINANCIAL CORPORATION
STOCK OPTION PLAN
THIS AGREEMENT, made this _____ day of __________, __, by and
between Aames Financial Corporation, a Delaware corporation (the "Company"), and
____________ (the "Optionee")
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Optionee is now employed by the Company in a key
capacity, and the Company desires to have him remain in such employment and to
afford him the opportunity to acquire, or enlarge, his ownership of the
Company's Common Stock, par value $.01 per share ("Stock"), so that he may have
a direct proprietary interest in the Company's success;
WHEREAS, all capitalized terms not otherwise defined herein shall
have the same meaning as set forth in the Company's Stock Option Plan;
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth
herein and in the Company's Stock Option Plan (the "Plan"), the Company hereby
grants to the Optionee, during the period commencing on the date of this
Agreement and ending ten years from the date hereof (the "Termination Date"),
the right and option (the right to purchase any one share of Stock hereunder
being an "Option") to purchase from the Company, at a price of $1.00 per share,
an aggregate of shares of Stock.
2. Limitations on Exercise of Option. (a) Subject to the terms
and conditions set forth herein, all Options shall vest and become exercisable
on the ninth anniversary of the date of grant (the "Grant Date"), provided that
Optionee remains an employee of the Company on such date, subject to earlier
vesting, based upon the Company's attainment of the following share price
values: (i) 25% of the Options shall vest at such time as the Stock's Fair
Market Value is first, while the Optionee is employed by the Company and after
the Grant Date, at or above $1.30 per share; (ii) an additional 25% of the
Options shall vest at such time as the Stock's Fair Market Value is first, while
the Optionee is employed by the Company and after the Grant Date, at or above
$1.75 per share; and (iii) an additional 50% of the Options shall
<PAGE>
vest at such time as the Stock's Fair Market Value is first, while the Optionee
is employed by the Company and after the Grant Date, at or above $2.50 per
share; provided, however, that any such acceleration shall be limited according
to the following schedule: not more than 15% of the Options that have become
vested based upon performance shall become exercisable before the first
anniversary of the Grant Date; not more than an additional 15% of the Options
that have become vested based upon performance shall become exercisable before
the second anniversary of the Grant Date; not more than an additional 20% of the
Options that have become vested based upon performance shall become exercisable
before each of the third and fourth anniversaries of the Grant Date; and the
remaining 30% of the Options that have become vested based upon performance
shall not become exercisable before the fifth anniversary of the Grant Date; and
further provided, that if the Optionee is terminated without Cause or the
Optionee terminates his employment for Good Reason, after a date when any of the
performance thresholds set forth in clause (i), (ii) or (iii) of this paragraph
2(a) has been satisfied, then, in computing the exercisability limitation set
forth in the preceding proviso, an additional 15% of the Options that have
become vested based upon performance shall be exercisable over and above the
Options that become exercisable without regard to this proviso.
(b) Any provision of paragraph 2(a) hereof to the contrary
notwithstanding, but subject to Article XI(c) of the Plan, upon a Change in
Control, 100% of the Options shall vest and become exercisable, provided,
however, that no such exercise rights shall arise unless (i) if a Change in
Control occurs within 12 months of the consummation of the transactions
contemplated by the Purchase Agreement (the "Closing Date"), the Change in
Control Price is at or above $1.50 per share or (ii) if a Change in Control
occurs more than twelve months from the Closing Date, the Change in Control
Price is at or above $2.50 per share (or if the Change in Control Price is less
than $2.50 but above $1.30 or $1.75 per share the acceleration of vesting shall
result, but only to the extent such acceleration would have resulted pursuant to
paragraph 2(a)(i) or 2(a)(ii) above, without regard to service requirements).
3. Termination of Employment. An Optionee's rights upon
termination of employment shall be as set forth in Article VI of the Plan.
4. Method of Exercising Option. (a) The Optionee may exercise any
or all of the Options by delivering to the Company a written notice signed by
the Optionee stating the number of Options that the Optionee has elected to
exercise at that time and full payment of the purchase price of the shares to be
thereby purchased from the Company. Payment of the purchase price of the shares
may be made (a) by certified or bank cashier's check payable to the order of the
Company, (b) by surrender or delivery to the Company of shares of Stock or other
property acceptable to the Committee in its sole discretion, which Stock or
other property shall have a value equal to the purchase price or (c) by delivery
to the
- 2 -
<PAGE>
Committee of a copy of irrevocable instructions to a stockbroker to deliver
promptly to the Company an amount of sale or loan proceeds sufficient to pay the
purchase price.
(b) At the time of exercise, the Optionee shall pay to the
Company such amount as the Company deems necessary to satisfy its obligation to
withhold Federal, state or local income or other taxes incurred by reason of the
exercise or the transfer of shares thereupon.
5. Issuance of Shares. As promptly as practical after receipt of
such written notification and full payment of such purchase price and any
required income tax withholding amount, the Company shall issue or transfer to
the Optionee the number of shares with respect to which Options have been so
exercised, and shall deliver to the Optionee a certificate or certificates
therefor, registered in the Optionee's name.
6. Company; Optionee. (a) The term "Company" as used in this
Agreement with reference to employment shall include the Company and its
subsidiaries. The term "subsidiary" as used in this Agreement shall mean any
subsidiary of the Company as defined in Section 424(f) of the Code.
(b) Whenever the word "Optionee" is used in any provision of this
Agreement under circumstances where the provision should logically be construed
to apply to the executors, the administrators, or the person or persons to whom
the Options may be transferred by will or by the laws of descent and
distribution, the word "Optionee" shall be deemed to include such person or
persons.
7. Non-Transferability. The Options are not transferable by the
Optionee otherwise than by will or the laws of descent and distribution and are
exercisable during the Optionee's lifetime only by him. No assignment or
transfer of the Options, or of the rights represented thereby, whether voluntary
or involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in the assignee or transferee any interest
or right herein whatsoever, but immediately upon such assignment or transfer the
Options shall terminate and become of no further effect. Unless otherwise
provided by the Committee at the time of exercise, Optionee shall enter into a
binding agreement with the Company at the time of grant pursuant to which
Optionee agrees, during any period when the Minimum Stock Ownership Threshold is
met or exceeded, (i) not to sell, assign or otherwise transfer more than 25% of
the Stock purchased pursuant to an Option in any given year and (ii) in
aggregate not to sell, assign or otherwise transfer more than 25% of the Stock
purchased pursuant to an Option over a five year period beginning on the
effective date of the Plan. Appropriate legends shall be placed on the stock
certificates evidencing shares issued upon exercise of options to reflect such
transfer restrictions.
- 3 -
<PAGE>
8. Rights as Stockholder. The Optionee or a transferee of the
Options shall have no rights as a stockholder with respect to any share covered
by the Options until he shall have become the holder of record of such share,
and no adjustment shall be made for dividends or distributions or other rights
in respect of such share for which the record date is prior to the date upon
which he shall become the holder or record thereof.
9. Recapitalizations, Reorganizations, etc. (a) The existence of
the Options shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of stock
or of options, warrants or rights to purchase stock or of bonds, debentures,
preferred or prior preference stocks ahead of or affecting the Stock or the
rights thereof or convertible into or exchangeable for Stock, or the dissolution
or liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
(b) The shares with respect to which the Options are granted are
shares of Stock of the Company as presently constituted, but if, and whenever,
prior to the delivery by the Company of all of the shares of the Stock with
respect to which the Options are granted, the Company shall effect a subdivision
or consolidation of shares of the Stock outstanding, without receiving
compensation therefor in money, services or property, the number and price of
shares remaining under the Options shall be appropriately adjusted. Such
adjustment shall be made by the Committee, whose determination as to what
adjustment shall be made, and the extent thereof, shall be final, binding and
conclusive. Any such adjustment may provide for the elimination of any
fractional share which might otherwise become subject to the Options.
(c) In the event of any change in the outstanding shares of Stock
by reason of any recapitalization, merger, consolidation, spin-off, combination
or exchange of shares or other corporate change, or any distributions to common
shareholders other than cash dividends, the Committee shall make such
substitution or adjustment, if any, as it deems to be equitable, as to the
number or kind or shares of Stock or other securities covered by the Options and
the option price thereof. The Committee shall notify the Optionee of any
intended sale of all or substantially all of the Company's assets within a
reasonable time prior to such sale.
(d) Except as hereinbefore expressly provided, the issue by the
Company of shares of stock of any class, or securities convertible into or
exchangeable for shares of stock of any class, for cash or property, or for
labor or services, either upon direct sale or upon the exercise of options,
rights or warrants to subscribe therefore, or to purchase the same, or upon
conversion of
- 4 -
<PAGE>
shares or obligation of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Stock subject to the Options.
10. Compliance with Law. Notwithstanding any of the provisions
hereof, the Optionee hereby agrees that he will not exercise the Options, and
that the Company will not be obligated to issue or transfer any shares to the
Optionee hereunder, if the exercise hereof or the issuance or transfer of such
shares shall constitute a violation by the Optionee or the Company of any
provisions of any law or regulation of any governmental authority. Any
determination in this connection by the Committee shall be final, binding and
conclusive. The Company shall in no event be obliged to register any securities
pursuant to the Securities Act of 1933 (as now in effect or as hereafter
amended) or to take any other affirmative action in order to cause the exercise
of the Options or the issuance or transfer of shares pursuant thereto to comply
with any law or regulation of any governmental authority.
11. Notice. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed to or delivered to the party
for whom it is intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as herein provided,
provided that, unless and until some other address be so designated, all notices
or communications by the Optionee to the Company shall be mailed or delivered to
the Company at its principal executive office, and all notices or communications
by the Company to the Optionee may be given to the Optionee personally or may be
mailed to him at the address shown below his signature to this Agreement.
12. Non-Qualified Options. The Options granted hereunder are not
intended to be incentive stock options within the meaning of Section 422 of the
Code.
13. Binding Effect. Subject to Section 7 hereof, this Agreement
shall be binding upon the heirs, executors, administrators and successors of the
parties hereto.
14. Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware.
15. Plan. The terms and provisions of the Plan are incorporated
herein by reference. In the event of a conflict or inconsistency between
discretionary terms and provisions of the Plan and the express provisions of
this Agreement, this Agreement shall govern and control. In all other instances
of conflicts or inconsistencies or omissions, the terms and provisions of the
Plan shall govern and control.
- 5 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
AAMES FINANCIAL CORPORATION
By: __________________________
Optionee
- 6 -
<PAGE>
Exhibit C
PROMISSORY NOTE AND WAIVER
$540,000 LOS ANGELES, CALIFORNIA
January __, 1999
FOR VALUE RECEIVED, the undersigned Neil B. Kornswiet (hereinafter
"Kornswiet") hereby promises to pay to the order of Aames Financial Corporation,
350 S. Grand Avenue, Los Angeles, California 90071 (hereinafter called the
"Company") the principal amount of FIVE HUNDRED AND FORTY THOUSAND DOLLARS
($540,000) together with the interest on the unpaid balance of such principal
amount from the date hereof at the lowest rate of interest prescribed by Section
7872 of the Internal Revenue Code of 1986 that would permit imputation of
interest under such section to be avoided.
This Note and the indebtedness evidenced hereby are being provided pursuant
to the terms of the agreement effective as of January __, 1999 between Kornswiet
and the Company (the "Employment Agreement").
Subject to the terms and conditions herein, if Kornswiet is employed by the
Company for the full period from January __, 1999 through the first anniversary
of the "Effective Date", as such term is defined in Kornswiet's Employment
Agreement (the "Effective Date") or through the date of any earlier termination
of Executive's employment by the Company pursuant to Paragraphs 5A, B, or F of
the Employment Agreement or by the Executive pursuant to Paragraph 5D of the
Employment Agreement, the principal on this Note, together with the interest
accrued on such principal shall be forgiven by the Company in full and this Note
shall be marked canceled. The Company shall also reimburse Kornswiet on a net
after-tax basis for any tax liability attributable to the forgiveness of
interest.
In the event Kornswiet's employment with the Company is terminated prior to
the first anniversary of the Effective Date, pursuant to Paragraph 5C of the
Employment Agreement or in the event that Kornswiet terminates his employment
with the Company prior to the first anniversary of the Effective Date for other
than "good reason" (as defined in the Paragraph 5D of the Employment Agreement),
Kornswiet shall repay the full principal amount evidenced by this Note, together
with the interest accrued on such principal, within fourteen (14) days of such
termination date.
Unless this note is forgiven by the Company pursuant to the third paragraph
hereof, the Company shall have the right to set off any amounts which Kornswiet
owes the Company hereunder against any monies which the Company or any of its
subsidiaries
<PAGE>
may owe to Kornswiet, of any nature whatsoever, including without
limitation, any compensation and any severance owed under the Employment
Agreement or any other benefit owed to or held by Kornswiet as an employee of
the Company or any of its subsidiaries, and Kornswiet hereby agrees to and
authorizes any such setoff.
If payment of the principal, together with the interest accrued on such
principal, on this Note is not paid in accordance with the terms aforementioned,
then this Note shall be deemed to be in default and if suit is brought to
collect this Note, the Company shall be entitled to collect, in addition to any
principal outstanding, together with the interest accrued on such Note, all
reasonable costs and expenses to include, but not necessarily be limited to,
reasonable attorneys' fees and expenses.
Presentment, notice of dishonor and protest are hereby waived by Kornswiet.
This Note shall be binding upon Kornswiet and his heirs, executors,
administrators, and legal representatives.
No delay or omission on the part of the Company in exercising any rights
hereunder shall operate as a waiver of such rights or of any other right of the
Company, nor shall any delay, omission or waiver on any one occasion be deemed
as a bar to or waiver of the same or any other right on any future occasion.
This Note may not be changed or terminated orally.
Kornswiet shall have the right to prepay the principal of this Note,
together with the accrued and unpaid interest on such principal, in whole or in
part, at any time or times, without penalty.
Regardless of whether this Note is forgiven, Kornswiet acknowledges having
received the entire principal amount of this Note from the Company and hereby
waives all rights, if any, to his 1999 Bonus (as defined in Exhibit A of the
Employment Agreement).
All rights and obligations hereunder shall be governed by, and construed
and enforced in accordance with, the substantive laws of the State of Delaware,
and this Note is executed as, and shall have effect of, a sealed instrument. If
any provision of this transaction is inconsistent with the laws and statutes of
the State of Delaware, the rest of the transaction shall not be affected, and
that part that is not in accord with the said laws shall be adjusted to so
comply.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Note as an instrument
under seal this ____ day of January, 1999.
------------------------
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is between Aames Financial
Corporation, a Delaware corporation (the "Company"), and Cary H. Thompson (the
"Executive"). This Agreement shall become effective (the "Effective Date") on
the "Initial Closing Date," as such term is defined in the Purchase Agreement
(defined below).
BACKGROUND
----------
A. As of the Effective Date, the Company is or will be engaged primarily in
originating, selling and servicing home mortgage loans.
B. The Executive is currently a stockholder and officer of the Company, and
as part of the closing (the "Closing") under the Preferred Stock Purchase
Agreement by and among the Company and Capital Z Financial Services Fund II,
L.P. ("Purchaser"), dated the 23rd day of December, 1998 (the "Purchase
Agreement"), the Company has agreed that, after the Effective Date, the Company
will continue to employ the Executive to provide services for the benefit of the
Company on the terms of this Agreement. If the Closing does not occur, this
Agreement shall have no force or effect and the Employment Agreement dated May
8, 1997 shall remain in force.
C. In exchange for the benefits provided for under this Agreement, except
as otherwise specifically provided in this Agreement or in Exhibit A hereto, as
of the Effective Date, the Executive hereby waives any and all rights and
benefits accruing under all other employment, change in control, stock option
and any and all other agreements (except for benefits provided under the
Company's 401(k) plan or continued pursuant to Section 3C hereof, and stock
options granted under the Aames Financial Corporation 1997 Non-Qualified Stock
Option Plan, as Amended and Restated Effective May 22, 1998, the Aames Financial
Corporation 1997 Stock Option Plan, the Aames Financial Corporation 1996 Stock
Incentive Plan, as amended, the Aames Financial Corporation 1995 Stock Incentive
Plan the Aames Financial Corporation 1991 Stock Incentive Plan and under the
Stock Option Agreement between the Company and the Executive dated June 21,
1996, as amended August 26, 1998 (all of which shall be preserved)), between
Executive and the Company and its subsidiaries that provide for the payment of
compensation or benefits to Executive.
In consideration of the foregoing and the mutual agreements set forth below, the
parties agree as follows:
AGREEMENT - PRINCIPAL TERMS
---------------------------
1. Employment and Duties. The Company shall employ the Executive as its
Chief Executive Officer, and the Executive accepts such employment on the terms
and conditions of the
<PAGE>
Agreement. The Executive shall, while this Agreement remains in effect, have the
duties, responsibilities, powers, and authority customarily associated with such
position. The Executive shall report to, and follow the direction of, the Board
of Directors of the Company (the "Board"). During each year of the Term (as
hereinafter defined), the Company shall nominate the Executive for election as a
member of the Board. In addition, the Executive also shall perform such other
and unrelated services and duties as the Board may assign to him. The Executive
shall diligently, competently, and faithfully perform all duties, and shall
devote his entire business time, energy, attention, and skill to the performance
of duties for the Company and its affiliates and will use his best efforts to
promote the interests of the Company and its affiliates.
2. Term of Employment. Unless sooner terminated as provided in this
Agreement, the initial term under this Agreement shall be five (5) years,
starting on the Effective Date (the "Initial Term"). The term of employment
shall be renewed automatically for successive periods of one (1) year each (a
"Renewal Term") after the expiration of the Initial Term and any subsequent
Renewal Term, unless the Board provides the Executive, or the Executive provides
the Board, with written notice to the contrary at least one hundred twenty (120)
days prior to the end of the Initial Term or any Renewal Term. The Initial Term
and the Renewal Terms are referred to collectively as "Terms."
3. Compensation.
A. Salary. The Company shall pay the Executive an annual salary of
$600,000 (the "Base Salary"), payable in substantially equal installments in
accordance with the Company's payroll policy. The amount of Base Salary payable
to Executive shall be reviewed at least annually; provided, however, that
Executive's Base Salary shall not be reduced below $600,000 per annum during the
term of this Agreement.
B. Performance Bonus; Other Limitations. The Executive shall be
entitled to an annual cash bonus on the basis outlined in Exhibit A. The
covenants set forth in Exhibit A shall be binding upon the parties to the same
extent as if set forth herein.
C. Automobile. The Company's current policy with regard to the
provision of an automobile to the Executive shall be maintained during the Term
until such time as the Compensation Committee of the Board determines otherwise
and provides other benefits not materially less favorable to Executive.
D. Vacation. Executive shall be entitled to 5 weeks of paid vacation
each year of employment with the Company for the term of this Agreement. In each
case, such entitlement shall accrue pro rata over the contract year and shall be
taken at such
<PAGE>
time or times as shall not unreasonably interfere with the operations of the
Company.
E. Insurance. During the Term, the Company shall maintain, at no cost
to Executive, directors and officers liability insurance that covers the
Executive in an amount of not less than $45,000,000.
F. Stock Options. The Company shall grant to the Executive on the
Effective Date an option to purchase 2,630,162 shares of the Company's common
stock pursuant to and subject to the provisions of the Company's 1999 Stock
Option Plan. Such option shall be subject to the terms of an option agreement
substantially in the form annexed hereto as Exhibit B.
G. Other Benefits. While this Agreement remains in effect, the Company
shall continue to provide the Executive with (i) not less than $2,000,000 of
standard term life insurance; (ii) medical and dental benefits for the Executive
and his dependents substantially comparable to that provided immediately prior
to the execution of this Agreement; (iii) a long-term disability policy
providing for payments in an amount equal to 60% of the Executive's Base Salary,
provided such a policy may be obtained at reasonable cost; and (iv) the
Executive shall participate in such other savings, pension and retirement plans
and other benefit plans or programs maintained by the Company for the benefit of
its executives.
4. Expenses. The Company shall reimburse the Executive for all reasonable
business expenses, that are incurred in accordance with the Company's policies
as in effect from time to time, provided the Executive submits appropriate
receipts or other documentation acceptable to the Company and as required by the
Internal Revenue Service to qualify as ordinary and necessary business expenses
under the Internal Revenue Code of 1986, as amended.
5. Termination. Notwithstanding anything in Paragraph 2 of this Agreement
to the contrary, the term of this Agreement and Executive's services under this
Agreement shall terminate upon the first to occur of the following events:
A. At the end of the applicable Term of this Agreement, including any
Renewal Terms.
B. Upon the Executive's date of death or the date the Executive is
given written notice that the Company has properly determined that he is
disabled. For purposes of this Agreement, the Executive shall be properly deemed
to be disabled if the Executive, as a result of illness or incapacity, shall be
unable to perform substantially his required duties for a period of 120
consecutive days or for any aggregate period of 183 days in any twelve (12)
month period. The Company shall notify the Executive that his employment has
been terminated by written notice. The
<PAGE>
termination shall be effective on the tenth (10th) business day after the
Executive receives the notice, unless the Executive returns to full-time
performance of his duties before such tenth (10th) business day.
C. On the date the Company provides the Executive with written notice
that he is being terminated for "cause." For purposes of this Agreement, and as
reasonably determined by the Company, the Executive shall be deemed terminated
for cause if the Company terminates the Executive after finding that the
Executive: (1) shall have been determined by a court of law to have committed
any felony including, but not limited to, a felony involving fraud, theft,
misappropriation, dishonesty, embezzlement, or any other crime involving moral
turpitude, or if the Executive shall have been arrested or indicted for
violation of any criminal statute constituting a felony, provided the Company
reasonably determines that the continuation of the Executive's employment after
such event would have an adverse impact on the operation or reputation of the
Company or its affiliates (subsequent references to the "Company" in this
Paragraph 5C shall be deemed to refer to the Company or its affiliates); (2)
shall have committed one or more acts of gross negligence or willful misconduct,
either within or outside the scope of his employment that, in the good faith
opinion of the Board, materially impair the goodwill or business of the Company
or cause material damage to its property, goodwill, or business, or would, if
known, subject the Company to public ridicule; (3) shall have refused or failed
to a material degree to perform his duties hereunder (continuing without cure
for ten (10) days after receipt of written notice of need to cure); (4) shall
have violated any material written Company policy provided to the Executive
during or prior to the Term (continuing without cure for ten (10) days after
receipt of written notice of need to cure) and that has caused material harm to
the Company; or (5) knew or should have known, that the Company materially, and
knowingly or intentionally breached any representation, warranty, or covenant
under the Purchase Agreement, or that the Executive shall have materially and
knowingly or intentionally breached any provision this Agreement; provided,
however, that no termination of Executive's employment for Cause shall be deemed
to have occurred unless Executive is given notice of the reason therefore
including the allegations which may constitute reason for such termination and
after (a) Executive is provided an opportunity to be heard by the Board or the
Executive Committee thereof, and (b) such decision has been upheld by the Board
or Executive Committee.
D. On the date the Executive terminates his employment for "Good
Reason." For purposes of this Agreement, "Good Reason" shall mean termination by
the Executive within ninety (90) days of learning of the acts which are the
basis for alleging Good Reason, because of the occurrence of any of the
following acts, without the Executive's consent: (1) he has been demoted to a
position of materially less stature or importance
<PAGE>
within the Company than the position described in Paragraph 1, (2) he has been
assigned to duties that are of materially less importance than those required to
be performed pursuant to Paragraph 1 of this Agreement, (3) the Company has
failed to pay or provide material compensation or benefits that are required to
be provided in this Agreement, or (4) the Company's principal executive offices
have been relocated to any county other than Los Angeles County, CA or Orange
County, CA., provided that no such termination shall be treated as for Good
Reason unless the Executive shall have given the Company thirty (30) days
advance written notice of his intention to terminate his employment for Good
Reason, and the Company shall have failed to cure such acts within such thirty
(30) day period.
E. On the date the Executive terminates his employment for any reason,
other than Good Reason, provided that the Executive shall give the Company
thirty (30) days written notice prior to such date of his intention to terminate
this Agreement.
F. On the date the Company terminates the Executive's employment for
any reason, other than a reason otherwise set forth in this Paragraph 5. Any
purported termination of the Executive's employment for Cause which is finally
determined to be without Cause shall be treated for all purposes of this
Agreement as a termination pursuant to this Paragraph 5F.
6. Compensation Upon Termination. If the Executive's services are
terminated pursuant to Paragraph 5, the Executive shall be entitled to the Base
Salary through his final date of active employment, plus any accrued but unused
vacation pay. If the Executive's services are terminated pursuant to Paragraph
5D or 5F, the Executive shall in addition be entitled to receive severance
benefits for a period of 12 months payable in substantially equal installments
in accordance with the Company's payroll policy, in an amount equal to (i) $2
million, if such termination occurs within one year from the Effective Date,
(ii) $1.5 million, if such termination occurs after the first and on or before
the second anniversary of the Effective Date, (iii) $1.0 million, if such
termination occurs after the second and on or before the third anniversary of
the Effective Date, (iv) $0.5 million, if such termination occurs after the
fourth anniversary of the Effective Date, and (v) plus an amount, if any,
(regardless of the date of termination) necessary to reimburse the Executive on
a net after-tax basis for any applicable federal excise tax, provided in each
case the Executive signs an agreement that releases the Company from actions,
suits, claims, proceedings, and demands related to the period of employment
and/or termination of employment. Executive agrees that if his employment is
terminated for any reason, he shall immediately resign from all officer and
director positions he then holds with the Company and each of its parents,
affiliates and subsidiaries.
<PAGE>
7. Offset. In the event severance benefits become payable to the Executive
pursuant to Paragraph 6 above, such benefits, to the extent not theretofore
paid, shall be reduced, on a dollar-for-dollar basis, by (i) any outstanding
amounts owed by Executive to the Company and (ii) the amount of any compensation
for services earned by Executive on account of his employment or consulting
services with another business or on account of his self employment, from any
source, whether paid currently or deferred. In such event, Executive shall
cooperate with the Company and shall provide such information to the Company as
it may reasonably require in order to calculate the amount of the reduction
described above.
8. COBRA. If the Executive's services are terminated pursuant to Paragraph
5, the Executive shall also be entitled to any benefits mandated under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") or required
under the terms of any death, insurance, or retirement plan, program, or
agreement provided by the Company and to which the Executive is a party or in
which the Executive is a participant, including, but not limited to, any
short-term or long-term disability plan or program, if applicable. If the
Executive elects COBRA continuation coverage, the Company shall pay for such
health insurance coverage for the shorter of 12 months or the remaining Term at
the same rate as it pays for health insurance coverage for its active employees
(with the Executive required to pay for any employee-paid portion of such
coverage). After the expiration of the period set forth in the prior sentence
concludes, the Executive shall be responsible for the payment of all further
premiums attributable to COBRA continuation coverage at the same rate as the
Company charges all COBRA beneficiaries. However, no provision of this Agreement
shall be construed to extend the period of time over which such COBRA
continuation coverage is required to be provided to the Executive and/or his
dependents.
9. Arbitration. Any dispute between the parties hereto respecting the
meaning and intent of this Agreement or any of its terms and provisions shall be
submitted for expedited arbitration in Los Angeles, California, in accordance
with the National Rules of the American Arbitration Association for the
Resolution of Employment Disputes then in effect, and the arbitration
determination resulting from any such submission shall be final and binding upon
the parties hereto. Judgment upon any arbitration award may be entered in any
court of competent jurisdiction. The parties further agree that either party may
at any time seek provisional relief, including, but not limited to a temporary
restraining order or a preliminary injunction from any state or federal court in
California, in connection with any dispute being submitted for arbitration.
<PAGE>
10. Exclusive Employment; Confidentiality; Non-Solicitation.
A. Executive agrees to perform his duties, responsibilities and
obligations hereunder efficiently and to the best of his ability. Executive also
agrees that he will not engage in any other business activities, pursued for
gain, profit or other pecuniary advantage, that are competitive with the
activities of the Company. Executive agrees that all of his activities as an
employee of the Company shall be in conformity with all present and future
policies, rules and regulations and directions of the Company not inconsistent
with this Agreement.
B. Executive acknowledges that his employment by the Company will
bring him into close contact with many trade secrets and other confidential
affairs of the Company and its clients and customers, including, without
limitation, non-public information pertaining to ideas, knowledge, operations,
computer hardware and software, systems, costs, profits, markets, sales,
products, programs, interfaces, networks, protocols, data bases, key personnel,
pricing policies, operational methods, concepts, data, equipment, models,
compensation, suppliers, servicing, broker lists, customer lists, customers,
potential customers, rate sheets, plans, concepts, strategies, or products,
advertising, technical processes and applications and other business affairs and
methods, plans for future developments and other information not readily
available to the public or the Company's competitors or clients (collectively
referred to hereinafter as "Information"). In consideration of the foregoing,
the Executive agrees that he: (1) will keep secret and confidential all
Information and will not use it for his own benefit or disclose it to, or use it
for the benefit of, anyone other than the Company, either during or after his
employment by the Company, except with the prior written consent of the Company;
(2) will take all reasonable action that the Company deems necessary or
appropriate to prevent unauthorized use or disclosure of or to protect the
Company's interest in Information; (3) will deliver promptly to the Company upon
termination of his employment by the Company or at any other time the Company
may so request, all memoranda, notes, documentation, equipment, files,
flowcharts, program listings, data listings, records, reports and other tangible
manifestations of the Information (and all copies thereof), that he may then
possess or have under his control; and (4) will, unless the Company otherwise
agrees in writing, and without additional compensation, promptly disclose and,
upon request, assign to the Company all rights to work product and business
opportunities related to the present or, to the extent presented to the Board of
Directors prior to termination of employment, contemplated business of the
Company.
C. Executive further agrees that if his employment is terminated
during the three year period beginning on the Effective Date, he will abide by
the limitations set forth in the following sentence (i) for a period of six
months from the date
<PAGE>
of termination, if his employment is terminated pursuant to Paragraph 5B, 5D or
5F, and (ii) for a period of one year from the date of termination, if his
employment is terminated by the Company pursuant to Paragraph 5C or if his
employment is terminated by the Executive without Good Reason (the applicable
period is referred to below as the "Nonsolicitation Period"). During the
Nonsolicitation Period, the Executive agrees that he will not, without the
Company's express written consent, himself or through any organization with
which he is associated: (i) hire any person who was employed by the Company on
the Executive's date of termination of employment or at any time within six
months prior thereto or hire any agent, consultant, or independent contractor of
the Company, or of any organization with respect to which the Company has agreed
to a similar prohibition and of which the Employee has knowledge, or induce or
attempt to induce any such person to discontinue such employment or affiliation
with the Company or such organization, as the case may be, or (ii) induce or
attempt to induce any client or customer of the Company on the date of
termination to discontinue any business relationship or to refrain from entering
into a new business relationship with the Company.
D. Executive confirms and acknowledges that (i) he was represented by
counsel of his own choosing during the negotiation of the limitations set forth
in Paragraphs 10 and 11 of this Agreement, (ii) his strict adherence to the
limitations imposed upon him thereunder, or under any agreement referenced
therein, was a material factor in Purchaser's entering into the Purchase
Agreement and agreeing to consummate the transactions contemplated thereby, and
to pay the Executive the cash and equity-based compensation called for in this
Agreement, (iii) the Company's ability to maintain continuing relationships with
its employees without disruption was a material factor in Purchaser's entering
into the Purchase Agreement and agreeing to consummate the transactions
contemplated thereby, (iv) his failure to adhere to the obligations imposed by
Paragraphs 10 and 11 of this Agreement will expose such Purchaser to substantial
and irreparable harm. Accordingly, Executive agrees that the remedy at law for
any breach by him of the covenants and agreements set forth in this Paragraph 10
or in Paragraph 11 below may be inadequate and that in the event of any such
breach, the Company or its respective subsidiaries may, in addition to the other
remedies that may be available to it at law, seek injunctive relief prohibiting
him (together with all those persons associated with him) from breach of such
covenants and agreements.
11. Non-Competition. The Company's obligation to provide the compensation
due upon termination pursuant to the last sentence of Paragraph 6 hereof shall
be contingent upon his not, directly or indirectly, owning, managing, operating,
joining or controlling, becoming employed by or participating in the ownership,
management, operation or control of, or becoming a consultant to or connected in
any other manner with, any
<PAGE>
business, firm or corporation which is materially similar to or materially
competes with the Company, provided, however, that the foregoing shall not
preclude the Executive from providing investment banking services not involving
the Company. For these purposes, Executive's ownership of securities of a public
company not in excess of one percent of any class of such securities shall not
be considered to be competition with the Company.
AGREEMENT - MISCELLANEOUS
-------------------------
12. Entire Agreement. This Agreement sets forth the entire and final
agreement and understanding of the Company and the Executive and contains all of
the agreements made between them with respect to the subject matter hereof. This
Agreement supersedes any and all other agreements, either oral or in writing,
between the Company and the Executive with respect to Executive's provision of
services to the Company. No change or modification of this Agreement shall be
valid unless in writing and signed by the Company and the Executive.
13. Enforcement; Severability. Should a decision be entered by a court of
competent jurisdiction that the character, duration or geographical scope of any
provision of this Agreement is unreasonable, or that any provision of this
Agreement is invalid or unenforceable for any reason, in whole or in part, then
the Company and the Executive agree that such provision shall be construed by
the court in such a manner as to impose all those restrictions on the
Executive's conduct that are reasonable in light of the circumstances and as are
necessary to assure to the Company the benefits of this Agreement and to render
the provision valid and enforceable, and this Agreement shall be construed and
enforced to the maximum extent permitted by law, as if such provision had been
originally incorporated in this Agreement as so modified, restricted, or
reformulated or as if such provision had not been originally included in this
Agreement, as the case may be. The parties further agree to seek a lawful
substitute for any provision found to be unlawful; provided, that, if the
parties are unable to agree upon a lawful substitute, the parties desire and
request that the arbitrator or other authority called upon to decide the
enforceability of this Agreement modify those provisions such that, once
modified, this Agreement will be enforceable to the maximum extent permitted by
the law in existence at the time of the requested enforcement.
14. Miscellaneous.
A. Notices. All notices required in connection with this Agreement
shall be sufficiently given only if transmitted in writing and (i) personally
delivered, or sent by first class, registered or certified mail, return receipt
requested, postage prepaid, or by recognized overnight courier, (ii) sent by
facsimile, provided a hard copy is mailed on that date to the party for whom
such notices are intended, or (iii) sent by other means at least as fast and
reliable as first class mail. A
<PAGE>
written notice shall be deemed to have been given to the recipient party on the
earliest of (1) the date it shall be delivered to the address required by this
Agreement; (2) the date delivery shall have been refused at the address required
by this Agreement; (3) with respect to notices sent by mail or overnight
courier, the date as of which the Postal Service or overnight courier, as the
case may be, shall have indicated such notice to be undeliverable at the address
required by this Agreement; or (4) with respect to a facsimile, the date on
which the facsimile is sent and receipt is confirmed. Any and all notices
referred to in this Agreement, or which either party desires to give to the
other shall, in the case of the Executive, be addressed to his residence address
given to the Company by the Executive in writing for this purpose, or failing
receipt of such notice, to the last residence address on the Company's records,
or in the case of the Company, to its principal office with a copy to Capital
Z's principal office.
B. Waiver of Breach. A waiver by the Company of a breach of any
provision of this Agreement by the Executive shall not operate or be construed
as a waiver of any subsequent breach by the Executive. No waiver shall be valid
unless it is in writing and signed by an authorized officer of the Company
(other than the Executive).
C. Assignment. The Executive acknowledges that the services he is to
render are unique and personal. Accordingly, the Executive may not assign any of
his rights or delegate any of his duties or obligations under this Agreement.
The rights and obligations of the Company under this Agreement shall inure to
the benefit of and shall be binding upon the successors and assigns of the
Company.
D. Construction. The heading in this Agreement are inserted for
convenience only and are not to be considered a construction of the provisions
hereof. The Background recitals are incorporated in this Agreement as an
integral part hereof and shall be considered as substantive and not precatory
language.
E. Execution of Agreement. This Agreement may be executed in several
counterparts, each of which shall be considered an original, but which when
taken together, shall constitute one agreement.
F. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of California.
COMPANY: EXECUTIVE:
* By_________________________ ___________________________
<PAGE>
EXHIBIT A
---------
* For bonuses after the 1999 calendar year, Executive shall receive a cash
bonus paid annually on a calendar year basis ranging from 0-100% of total
Base Salary, with an expected bonus of $400,000 and a bonus in excess of
100% of Base Salary for extraordinary performance. Bonuses shall be paid
according to a budget approved by the Board of Directors of the Company and
the achievement of other non-financial goals adopted by such Board.
* For so long as Capital Z and/or its Designated Purchasers under the
Purchase Agreement own at least 25% of the voting securities of the
Company, Executive covenants and agrees not to sell, assign or otherwise
transfer, in any one twelve month period, more than 25% of the aggregate
amount of shares of Company stock which the Executive owned immediately
prior to the Effective Date. The Company, by action of its Board of
Directors, agrees to consider whether to waive all or part of such
limitation in the event of extraordinary hardship, which consent shall not
be unreasonably withheld.
<PAGE>
Exhibit B
MODEL OPTION AGREEMENT
NON-QUALIFIED
STOCK OPTION AGREEMENT
UNDER THE
1999 AAMES FINANCIAL CORPORATION
STOCK OPTION PLAN
THIS AGREEMENT, made this _____ day of __________, __, by and
between Aames Financial Corporation, a Delaware corporation (the "Company"), and
____________ (the "Optionee")
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Optionee is now employed by the Company in a key
capacity, and the Company desires to have him remain in such employment and to
afford him the opportunity to acquire, or enlarge, his ownership of the
Company's Common Stock, par value $.01 per share ("Stock"), so that he may have
a direct proprietary interest in the Company's success;
WHEREAS, all capitalized terms not otherwise defined herein shall
have the same meaning as set forth in the Company's Stock Option Plan;
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth
herein and in the Company's Stock Option Plan (the "Plan"), the Company hereby
grants to the Optionee, during the period commencing on the date of this
Agreement and ending ten years from the date hereof (the "Termination Date"),
the right and option (the right to purchase any one share of Stock hereunder
being an "Option") to purchase from the Company, at a price of $1.00 per share,
an aggregate of shares of Stock.
2. Limitations on Exercise of Option. (a) Subject to the terms
and conditions set forth herein, all Options shall vest and become exercisable
on the ninth anniversary of the date of grant (the "Grant Date"), provided that
Optionee remains an employee of the Company on such date, subject to earlier
vesting, based upon the Company's attainment of the following share price
values: (i) 25% of the Options shall vest at such time as the Stock's Fair
Market Value is first, while the Optionee is employed by the Company and after
the Grant Date, at or above $1.30 per share; (ii) an additional 25% of the
Options shall vest at such time as the Stock's Fair Market Value is first, while
the Optionee is employed by the Company and after the Grant Date, at or above
$1.75 per share; and (iii) an additional 50% of the Options shall
<PAGE>
vest at such time as the Stock's Fair Market Value is first, while the Optionee
is employed by the Company and after the Grant Date, at or above $2.50 per
share; provided, however, that any such acceleration shall be limited according
to the following schedule: not more than 15% of the Options that have become
vested based upon performance shall become exercisable before the first
anniversary of the Grant Date; not more than an additional 15% of the Options
that have become vested based upon performance shall become exercisable before
the second anniversary of the Grant Date; not more than an additional 20% of the
Options that have become vested based upon performance shall become exercisable
before each of the third and fourth anniversaries of the Grant Date; and the
remaining 30% of the Options that have become vested based upon performance
shall not become exercisable before the fifth anniversary of the Grant Date; and
further provided, that if the Optionee is terminated without Cause or the
Optionee terminates his employment for Good Reason, after a date when any of the
performance thresholds set forth in clause (i), (ii) or (iii) of this paragraph
2(a) has been satisfied, then, in computing the exercisability limitation set
forth in the preceding proviso, an additional 15% of the Options that have
become vested based upon performance shall be exercisable over and above the
Options that become exercisable without regard to this proviso.
(b) Any provision of paragraph 2(a) hereof to the contrary
notwithstanding, but subject to Article XI(c) of the Plan, upon a Change in
Control, 100% of the Options shall vest and become exercisable, provided,
however, that no such exercise rights shall arise unless (i) if a Change in
Control occurs within 12 months of the consummation of the transactions
contemplated by the Purchase Agreement (the "Closing Date"), the Change in
Control Price is at or above $1.50 per share or (ii) if a Change in Control
occurs more than twelve months from the Closing Date, the Change in Control
Price is at or above $2.50 per share (or if the Change in Control Price is less
than $2.50 but above $1.30 or $1.75 per share the acceleration of vesting shall
result, but only to the extent such acceleration would have resulted pursuant to
paragraph 2(a)(i) or 2(a)(ii) above, without regard to service requirements).
3. Termination of Employment. An Optionee's rights upon
termination of employment shall be as set forth in Article VI of the Plan.
4. Method of Exercising Option. (a) The Optionee may exercise any
or all of the Options by delivering to the Company a written notice signed by
the Optionee stating the number of Options that the Optionee has elected to
exercise at that time and full payment of the purchase price of the shares to be
thereby purchased from the Company. Payment of the purchase price of the shares
may be made (a) by certified or bank cashier's check payable to the order of the
Company, (b) by surrender or delivery to the Company of shares of Stock or other
property acceptable to the Committee in its sole discretion, which Stock or
other property shall have a value equal to the purchase price or (c) by delivery
to the
- 2 -
<PAGE>
Committee of a copy of irrevocable instructions to a stockbroker to deliver
promptly to the Company an amount of sale or loan proceeds sufficient to pay the
purchase price.
(b) At the time of exercise, the Optionee shall pay to the
Company such amount as the Company deems necessary to satisfy its obligation to
withhold Federal, state or local income or other taxes incurred by reason of the
exercise or the transfer of shares thereupon.
5. Issuance of Shares. As promptly as practical after receipt of
such written notification and full payment of such purchase price and any
required income tax withholding amount, the Company shall issue or transfer to
the Optionee the number of shares with respect to which Options have been so
exercised, and shall deliver to the Optionee a certificate or certificates
therefor, registered in the Optionee's name.
6. Company; Optionee. (a) The term "Company" as used in this
Agreement with reference to employment shall include the Company and its
subsidiaries. The term "subsidiary" as used in this Agreement shall mean any
subsidiary of the Company as defined in Section 424(f) of the Code.
(b) Whenever the word "Optionee" is used in any provision of this
Agreement under circumstances where the provision should logically be construed
to apply to the executors, the administrators, or the person or persons to whom
the Options may be transferred by will or by the laws of descent and
distribution, the word "Optionee" shall be deemed to include such person or
persons.
7. Non-Transferability. The Options are not transferable by the
Optionee otherwise than by will or the laws of descent and distribution and are
exercisable during the Optionee's lifetime only by him. No assignment or
transfer of the Options, or of the rights represented thereby, whether voluntary
or involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in the assignee or transferee any interest
or right herein whatsoever, but immediately upon such assignment or transfer the
Options shall terminate and become of no further effect. Unless otherwise
provided by the Committee at the time of exercise, Optionee shall enter into a
binding agreement with the Company at the time of grant pursuant to which
Optionee agrees, during any period when the Minimum Stock Ownership Threshold is
met or exceeded, (i) not to sell, assign or otherwise transfer more than 25% of
the Stock purchased pursuant to an Option in any given year and (ii) in
aggregate not to sell, assign or otherwise transfer more than 25% of the Stock
purchased pursuant to an Option over a five year period beginning on the
effective date of the Plan. Appropriate legends shall be placed on the stock
certificates evidencing shares issued upon exercise of options to reflect such
transfer restrictions.
- 3 -
<PAGE>
8. Rights as Stockholder. The Optionee or a transferee of the
Options shall have no rights as a stockholder with respect to any share covered
by the Options until he shall have become the holder of record of such share,
and no adjustment shall be made for dividends or distributions or other rights
in respect of such share for which the record date is prior to the date upon
which he shall become the holder or record thereof.
9. Recapitalizations, Reorganizations, etc. (a) The existence of
the Options shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of stock
or of options, warrants or rights to purchase stock or of bonds, debentures,
preferred or prior preference stocks ahead of or affecting the Stock or the
rights thereof or convertible into or exchangeable for Stock, or the dissolution
or liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
(b) The shares with respect to which the Options are granted are
shares of Stock of the Company as presently constituted, but if, and whenever,
prior to the delivery by the Company of all of the shares of the Stock with
respect to which the Options are granted, the Company shall effect a subdivision
or consolidation of shares of the Stock outstanding, without receiving
compensation therefor in money, services or property, the number and price of
shares remaining under the Options shall be appropriately adjusted. Such
adjustment shall be made by the Committee, whose determination as to what
adjustment shall be made, and the extent thereof, shall be final, binding and
conclusive. Any such adjustment may provide for the elimination of any
fractional share which might otherwise become subject to the Options.
(c) In the event of any change in the outstanding shares of Stock
by reason of any recapitalization, merger, consolidation, spin-off, combination
or exchange of shares or other corporate change, or any distributions to common
shareholders other than cash dividends, the Committee shall make such
substitution or adjustment, if any, as it deems to be equitable, as to the
number or kind or shares of Stock or other securities covered by the Options and
the option price thereof. The Committee shall notify the Optionee of any
intended sale of all or substantially all of the Company's assets within a
reasonable time prior to such sale.
(d) Except as hereinbefore expressly provided, the issue by the
Company of shares of stock of any class, or securities convertible into or
exchangeable for shares of stock of any class, for cash or property, or for
labor or services, either upon direct sale or upon the exercise of options,
rights or warrants to subscribe therefore, or to purchase the same, or upon
conversion of
- 4 -
<PAGE>
shares or obligation of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Stock subject to the Options.
10. Compliance with Law. Notwithstanding any of the provisions
hereof, the Optionee hereby agrees that he will not exercise the Options, and
that the Company will not be obligated to issue or transfer any shares to the
Optionee hereunder, if the exercise hereof or the issuance or transfer of such
shares shall constitute a violation by the Optionee or the Company of any
provisions of any law or regulation of any governmental authority. Any
determination in this connection by the Committee shall be final, binding and
conclusive. The Company shall in no event be obliged to register any securities
pursuant to the Securities Act of 1933 (as now in effect or as hereafter
amended) or to take any other affirmative action in order to cause the exercise
of the Options or the issuance or transfer of shares pursuant thereto to comply
with any law or regulation of any governmental authority.
11. Notice. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed to or delivered to the party
for whom it is intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as herein provided,
provided that, unless and until some other address be so designated, all notices
or communications by the Optionee to the Company shall be mailed or delivered to
the Company at its principal executive office, and all notices or communications
by the Company to the Optionee may be given to the Optionee personally or may be
mailed to him at the address shown below his signature to this Agreement.
12. Non-Qualified Options. The Options granted hereunder are not
intended to be incentive stock options within the meaning of Section 422 of the
Code.
13. Binding Effect. Subject to Section 7 hereof, this Agreement
shall be binding upon the heirs, executors, administrators and successors of the
parties hereto.
14. Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware.
15. Plan. The terms and provisions of the Plan are incorporated
herein by reference. In the event of a conflict or inconsistency between
discretionary terms and provisions of the Plan and the express provisions of
this Agreement, this Agreement shall govern and control. In all other instances
of conflicts or inconsistencies or omissions, the terms and provisions of the
Plan shall govern and control.
- 5 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
AAMES FINANCIAL CORPORATION
By: __________________________
Optionee
- 6 -
<PAGE>
EXHIBIT K
Conditions to the Rights Offer
------------------------------
1. Consummation of the Recapitalization.
2. Each Company stockholder desiring to a accept the Rights Offer shall have
properly completed and forwarded to the Company (or its agent) (together
with the exercise price for the rights) a subscription certificate prior to
the expiration date for the Rights Offer.
<PAGE>
EXHIBIT L
Form of Opinion of
Troop Steuber Pasich Reddick & Tobey
Capitalized terms used but not defined herein shall have the meanings
set forth in the Preferred Stock Purchase Agreement, dated as of December 23,
1998 (the "Agreement"), by and between Aames Financial Corporation, a Delaware
corporation (the "Company"), and Capital Z Financial Services Fund II, L.P., a
Bermuda limited partnership (the "Purchaser").
(i) Each of the Company and its Subsidiaries is a corporation,
partnership or limited liability company duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, and has all
requisite corporate or other organizational power and authority under such laws
to own or lease and operate its properties and to carry on its business as now
conducted. Each of the Company and its Subsidiaries is duly qualified or
licensed to do business as a foreign corporation, partnership or limited
liability company in good standing in each jurisdiction in which the nature of
the business transacted by it or the character of the properties owned or leased
by it requires it to so qualify or be licensed, except where the failure to be
so licensed or qualified would not, singly or in the aggregate, be reasonably
likely to have a Material Adverse Effect. The Certificate of Incorporation and
the Bylaws of the Company and each of its Subsidiaries, each as amended to date,
in full force and effect.
(ii) Except are for the Shareholder Approval, (a) the Company has all
requisite corporate power and authority to perform, execute and deliver its
obligations under the Agreement, each Ancillary Agreement to which it is a
party, the Warrant, the Contingent Warrant and the Certificates of Designations;
and (b) all corporate action on the part of the Company, its officers, directors
and stockholders necessary for the authorization, execution and delivery of the
Agreement, each Ancillary Agreement to which the Company is a party, the
Warrant, the Contingent Warrant and the Certificates of Designation, and the
performance of all obligations of the Company thereunder, and the authorization,
issuance, sale and delivery of the Securities, has been taken.
(iii) The Agreement and each Ancillary Agreement to which the Company
is a party which was entered into on or prior to the date hereof, have been duly
authorized, executed and delivered by the Company and constitute the valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
<PAGE>
principles of equity (whether enforcement is sought by proceedings in equity or
at law).
(iv) Except (a) as set forth on the Company Disclosure Letter, (b)
required blue sky filings, if any, which will be effected in accordance with
applicable blue sky laws, (c) filings required under the Securities Act in
connection with the Registration Rights Agreement, (d) the filing of a
Pre-Merger Notification Form and related documents under the HSR Act, (e) the
approval of the NYSE for the issuance and listing of the Shares on the NYSE,
subject to official notice of issuance, (f) the Shareholder Approval, and (g) as
would not be reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
Governmental Authority or any other Person on the part of the Company is
required in connection with the consummation of the transactions contemplated by
the Agreement and the Ancillary Agreements.
(v) The execution and delivery by the Company of the Agreement, each
of the Ancillary Agreements to which it is a party, and the Warrant and the
Contingent Warrant, and the performance by the Company of its obligations
thereunder and in the Certificates of Designations, will not (a) violate any
provision of the Certificate of Incorporation or Bylaws, (b) violate any
provision of any law or any order of any court or Governmental Authority,
(c) conflict with, result in a breach of or constitute (with notice or lapse of
time or both) a default under, or allow any other party thereto a right to
terminate or seek a payment from the Company or any Subsidiary under the terms
of, any indenture, agreement or other instrument by which the Company or any of
its subsidiaries or any of their properties or assets is bound, or (d) result in
the creation or imposition of any Lien upon any of the properties or assets of
the Company or any of its Subsidiaries, other than, in the case of clauses (b),
(c) and (d), as would not be reasonably likely to have a Material Adverse
Effect.
(vi) The Company has authorized and outstanding capital stock as
provided in the Agreement. To our knowledge, the outstanding shares of Common
Stock have been duly authorized and validly issued and are fully paid and
non-assessable; except as provided in the Agreement, there are no Derivative
Securities outstanding (including preemptive rights), the Company has not
granted or agreed to grant any registration rights, including piggyback rights,
to any person or entity and the Company has no obligation (contingent or other)
to purchase, redeem or otherwise acquire any of its Equity Securities or any
interest therein or to pay any dividend or make any other distribution in
respect thereof.
(vii) The Securities and the Shares, when issued, sold and delivered
in accordance with the terms of the Agreement
L-2
<PAGE>
for the consideration expressed therein, will be duly authorized, validly
issued, fully paid and nonassessable. The issuance, sale and delivery of the
Securities and Shares is not subject to any preemptive right of stockholders of
the Company arising under law or the Certificate of Incorporation or Bylaws or
to any contractual right of first refusal or other contractual right in favor of
any Person. The issuance and sale of the Securities and the Shares will not
require registration under the Securities Act or state securities laws.
(viii) Except as expressly disclosed in the SEC Documents, to such
counsel's knowledge, (a) there is no action, suit, proceeding or investigation
pending or, to the knowledge of such counsel, currently threatened or likely to
be instituted against the Company or any of its Subsidiaries that involves a
claim against the Company or any of its Subsidiaries in an amount in excess of
$500,000, or that questions the validity of the Agreement or any of the
Ancillary Agreements or the right of the Company to enter into, or to
consummate, the transactions contemplated thereby, or that would be reasonably
likely, either individually or in the aggregate, to have a Material Adverse
Effect, nor does such counsel have knowledge that there is any basis for any of
the foregoing, (b) the Company is not a party or subject to the provisions of
any order, writ, injunction, judgment or decree of any court or Governmental
Authority or instrumentality that specifically names the Company or any of
Subsidiaries and as to which either compliance or noncompliance is reasonably
likely to have a Material Adverse Effect, and (c) there are no statutes, rules
or regulations, statutory or regulatory proceedings applicable to, or pending
(or to the knowledge of such counsel threatened) against the Company or any of
its Subsidiaries, which are reasonably likely to have a Material Adverse Effect.
There is no action, suit, proceeding or investigation by the Company or any of
its Subsidiaries currently pending or which the Company its Subsidiaries intends
to initiate that is material to the operations of the Company and Subsidiaries
considered as a whole.
L-3
<PAGE>
EXHIBIT M
Form of Opinion of
Willkie Farr & Gallagher
Capitalized terms used but not defined herein shall have the meanings
set forth in the Preferred Stock Purchase Agreement, dated as of December 23,
1998 (the "Agreement"), by and between Aames Financial Corporation, a Delaware
corporation (the "Company"), and Capital Z Financial Services Fund II, L.P., a
Bermuda limited partnership (the "Purchaser").
(i) The Purchaser is a limited partnership duly organized and validly
existing under the laws of Bermuda.
(ii) The Purchaser has full partnership power and authority to enter
into the Agreement and the Ancillary Agreements. Each of the Agreement and the
Ancillary Agreements to which the Purchaser is a party has been duly authorized,
executed and delivered by the Purchaser and constitutes the valid and legally
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether enforcement is sought by proceedings in equity or at law).
(iii) Based on a certificate to be delivered by the Purchaser, the
Purchaser is an accredited investor as defined under Rule 501(a) of the
Securities Act.
(iv) Except as provided in the Agreement, no consent, approval, order
or authorization of, or registration, qualification, designation, declaration or
filing with, any New York or federal Governmental Authority on the part of the
Purchaser is required in connection with the consummation of the transactions
contemplated by the Agreement and the Ancillary Agreements, except for (a) the
filing of a Pre-Merger Notification Form and related documents under the HSR
Act, (b) filings required under the Securities Act or the Exchange Act, or (c)
such consents, approvals, orders, authorizations, registrations, qualifications,
designations, declarations or filings, which if not obtained or made, as the
case may be, are not reasonably likely to impair in any material respect the
ability of the Purchaser to perform any of its obligations or agreements under
the Agreement or the Ancillary Agreements or consummate the transactions
contemplated thereby.
(v) Neither the execution and delivery of the Agreement by Purchaser,
nor the consummation of the transactions contemplated thereby, nor the
fulfillment of the terms and compliance with the provisions thereof will
conflict with or
<PAGE>
result in a material breach of or a material default (or in an occurrence which
with the lapse of time or action by a third party, or both, could result in a
material default) with respect to any of the terms, conditions or provisions
applicable to Purchaser, or of the partnership agreement of Purchaser, or, to
such counsel's knowledge, of any applicable order, writ or decree of any court
or of any Governmental Authority, any indenture, contract, agreement, lease or
other instrument to which Purchaser is a party or is subject or by which
Purchaser or any of its properties or assets are bound, or of any applicable New
York or federal statute, rule or regulation to which Purchaser or its businesses
is subject.
M-2
<PAGE>
Execution Copy
AAMES FINANCIAL CORPORATION
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 23, 1998,
among Capital Z Financial Services Fund II, L.P. ("Capital Z"), together with
the other investors listed on Schedule I hereto (collectively, the "Investors"),
and Aames Financial Corporation, a Delaware corporation (the "Company").
R E C I T A L S
---------------
WHEREAS, the Investors, pursuant to the terms of a Preferred
Stock Purchase Agreement, dated as of the date hereof, between Capital Z and the
Company (the "Purchase Agreement"), (i) have agreed to purchase shares of Series
B Convertible Preferred Stock, par value $0.001 per share, of the Company (the
"Series B Preferred Stock") and Series C Convertible Preferred Stock, par value
$0.001 per share, of the Company (the "Series C Preferred Stock" and, together
with the Series B Preferred Stock, the "Preferred Stock"), (ii) have received on
the date hereof warrants (the "Warrants") to purchase an aggregate of 1,250,000
shares of Common Stock, par value $0.001 per share (the "Common Stock"), of the
Company, and (iii) are to receive additional Common Stock purchase warrants (the
"Contingent Warrants" and, together with the Warrants, the "Investor Warrants")
on the Initial Closing Date (as defined in the Purchase Agreement); and
WHEREAS, the Company has agreed, as a condition precedent to
Capital Z's obligations under the Purchase Agreement to grant the Investors
certain registration rights; and
WHEREAS, the Company and the Investors desire to define the
registration rights of the Investors on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
Commission: shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act;
Conversion Shares: shall mean the shares of Common Stock for
which the Preferred Stock has been, or may be, converted.
<PAGE>
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder;
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean (a) Capital Z or (b) any Holder or
Holders of Registrable Securities aggregating at least 35% of (i) the aggregate
number of shares of Preferred Stock held by all Holders, in the case of any
registration of Preferred Stock, or (ii) the aggregate number of Conversion
Shares and Warrant Shares held by all Holders, in the case of any registration
of Conversion Shares or Warrant Shares (x) held by such Holders or (y) issued or
issuable upon conversion of the Preferred Stock or exercise of the Investor
Warrants;
Person: shall mean an individual, partnership, joint-stock
company, corporation, limited liability company, trust or unincorporated
organization, and a government or agency or political subdivision thereof;
register, registered and registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: (A) the shares of Preferred Stock issued
to the Investors pursuant to the Purchase Agreement, (B) the Warrant Shares, (C)
the Conversion Shares, (D) any additional shares of Common Stock or Preferred
Stock acquired by the Investors (but not their assignees, unless any such
assignee shall have acquired at least a number of Preferred Stock or Conversion
Shares equal to 15% of the shares of Preferred Stock or Conversion Shares
originally issued to the Investors pursuant to the Purchase Agreement, adjusted
for splits, combinations, and similar events), (E) any capital stock of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of Preferred Stock or Common Stock
referred to in clauses (A), (B), (C) or (D) above, until, in the case of any
such securities, (i) a registration statement covering such securities has been
declared effective by the Commission and such securities have been disposed of
pursuant to such effective Registration Statement or (ii) such securities have
been disposed of in open market transactions pursuant to Rule 144 under the
Securities Act (or similar rule then in effect);
Registration Expenses: shall mean (x) all expenses incurred by
the Company in compliance with Sections 2(a) and (b) hereof, excluding Selling
Expenses, but including, without limitation, all registration and filing fees,
printing expenses,
2
<PAGE>
blue sky fees and expenses and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company) and
(y) all reasonable fees and disbursements of one counsel retained by the Holders
of a majority of the Registrable Securities to be included in a particular
registration;
Security, Securities: shall have the meaning set forth in Section
2(1) of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder;
Selling Expenses: shall mean all underwriting and selling
discounts, fees and commissions applicable to the sale of Registrable
Securities; and
Warrant Shares: shall mean the shares of Common Stock for which
the Investor Warrants have been, or may be, exercised.
2. REGISTRATION RIGHTS
(a) Requested Registration.
(i) Request for Registration. If the Company shall receive
from an Initiating Holder, at any time, a written request that the
Company effect any registration with respect to all or a part of the
Registrable Securities, the Company will:
(A) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders;
and
(B) as soon as reasonably practicable, use its reasonable
best efforts to effect such registration (including, without
limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under
the Securities Act) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of
such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities
of any Holder or Holders joining in such request as are specified
in a written request received by the Company within 10 business
days after written notice from the Company is given under Section
2(a)(i)(A) above; provided that the Company shall not be
obligated to effect, or take any action to effect, any such
registration pursuant to this Section 2(a):
3
<PAGE>
(v) in any particular jurisdiction in which the
Company would be required to execute a general consent
to service of process in effecting such registration,
qualification or compliance, unless the Company is
already subject to service in such jurisdiction and
except as may be required by the Securities Act or
applicable rules or regulations thereunder;
(w) (i) with respect to a request for
registration of Warrant Shares or Conversion Shares,
after the Company has effected five (5) such
registrations pursuant to this Section 2(a) requested
by an Initiating Holder and (ii) with respect to a
request for registration of shares of Preferred Stock,
after the Company has effected five (5) such
registrations pursuant to this Section 2(a) requested
by an Initiating Holder, and, in each case, such
registrations have been declared or ordered effective
and the sales of such Registrable Securities shall have
closed;
(x) if the Registrable Securities requested by
all Holders to be registered pursuant to such request
do not have an anticipated aggregate public offering
price (before any underwriting discounts and
commissions) of at least $10,000,000;
(y) if at the time of any request to register
Registrable Securities, the Company is engaged or
intends to engage in an acquisition, financing or other
material transaction which, in the good faith
determination of the Board of Directors of the Company,
would be adversely affected by the requested
registration to the material detriment of the Company,
or the Board of Directors of the Company determines in
good faith that the registration would require the
disclosure of material information that the Company has
a bona fide business purpose for preserving as
confidential, and that the Company is not otherwise
required by applicable securities laws or regulations
to disclose, in which event, the Company may, at its
option, direct that such request be delayed for a
period not in excess of ninety days from the date of
the determination by the Board of Directors, as the
case may be, such right to delay a request to be
exercised by the Company not more than once in any
twelve-month period; or
(z) with respect to Holders who are officers,
directors or employees of the Company, if at the time
of any request to register Registrable Securities,
directors, officers, or employees of the
4
<PAGE>
Company are not permitted to offer or sell
securities in accordance with the Company's policies.
The registration statement filed pursuant to the request of an
Initiating Holder may, subject to the provisions of Section 2(a)(ii)
below, include other securities, other than Registrable Securities, of
the Company which are held by the other stockholders ("Other
Stockholders") of the Company.
The Holders holding a majority of the Registrable Securities
requested to be registered may, at any time prior to the effective
date of the registration statement relating to such registration,
revoke such request, without liability to the Company, such Holders,
any of the other Holders or the Other Stockholders, by providing a
written notice to the Company revoking such request, provided that
such revoked request shall count against the registrations available
to the Holders pursuant to Section 2(a)(x) unless such Holders pay the
costs and expenses associated with such revoked request.
Notwithstanding the foregoing provisions of this Section 2(a)(i),
if the Initial Closing (as defined in the Purchase Agreement) does not
take place for any reason whatsoever, the holder or holders of a
majority of the Warrants shall be entitled to one demand registration
right with respect to the Warrant Shares, subject to the other
provisions of this Agreement.
(ii) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means
of an underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 2(a). If shares held by Other
Stockholders are requested by such Other Stockholders to be included in
any registration pursuant to this Section 2, the Company shall condition
such inclusion on their acceptance of the further applicable provisions
of this Section 2. The Initiating Holders whose Registrable Securities
are to be included in such registration and the Company shall (together
with all Other Stockholders proposing to distribute their securities
through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or
underwriters selected for such underwriting by such Initiating Holders
and reasonably acceptable to the Company. Notwithstanding any other
provision of this Section 2(a), if the representative advises the
Holders in writing that marketing factors (including, without
limitation, pricing considerations) require a limitation on the number
of shares to be underwritten or a limitation on the inclusion of shares
held by directors and officers of the Company, the securities of the
Company held by Other Stockholders shall be excluded from such
registration to the extent so required by such limitation. If, after the
exclusion of such shares, further reductions are still
5
<PAGE>
required, the Registrable Securities of the Company held by each Holder
other than the Initiating Holders shall be excluded from such
registration to the extent so required by such limitation. Thereafter,
if still further reductions are required, the number of Registrable
Securities included in the registration by each Initiating Holder shall
be reduced on a pro rata basis (based on the number of Registrable
Securities held by such Initiating Holder), by such minimum number of
Registrable Securities as is necessary to comply with such request. No
Registrable Securities or any other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall
be included in such registration. If any Other Stockholder who has
requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the
Initiating Holders. The securities so withdrawn shall also be withdrawn
from registration. If the underwriter has not limited the number of
Registrable Securities or other securities to be underwritten, the
Company and officers and directors of the Company (including
representatives and designees of Capital Z or the Series B Preferred
Stock holders) may include its or their securities for its or their own
account in such registration if the representative so agrees and if the
number of Registrable Securities and other securities which would
otherwise have been included in such registration and underwriting will
not thereby be limited.
(iii) Other Registration Rights. The Company shall not
grant any registration rights inconsistent with the provisions of this
Section 2(a) and in granting any demand registration rights hereafter
shall provide that the Holders shall have the right to notice of the
exercise of any such demand registration right and to participate in
such registration on a pro rata basis.
(b) Company Registration.
(i) If the Company shall determine to register any of its
equity securities either for its own account or any Other Stockholders,
other than a registration relating solely to employee benefit plans, or
a registration relating solely to a Commission Rule 145 transaction, or
a registration on any registration form which does not permit secondary
sales or does not include substantially the same information as would be
required to be included in a registration statement covering the sale of
Registrable Securities, the Company will:
(A) promptly give to each of the Holders a written notice
thereof; and
6
<PAGE>
(B) include in such registration (and any related
qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by the Holders
within fifteen (15) days after receipt of the written notice from
the Company described in clause (A) above, except as set forth in
Section 2(b)(ii) below.
The Company may terminate, in its sole and absolute discretion, any
registration described in this Section 2(b) at any time prior to the
effectiveness of the applicable registration statement. Upon such
termination, the Company's obligations under this Section 2(b) with
respect to such terminated registration shall terminate.
(ii) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise each of the Holders as a part
of the written notice given pursuant to Section 2(b)(i)(A). In such
event, the right of each of the Holders to registration pursuant to this
Section 2(b) shall be conditioned upon such Holders' participation in
such underwriting and the inclusion of such Holders' Registrable
Securities in the underwriting to the extent provided herein. The
Holders whose shares are to be included in such registration shall
(together with the Company and the Other Stockholders distributing their
securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the underwriter
or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 2(b), if the
representative determines that marketing factors require a limitation on
the number of shares to be underwritten or a limitation on the inclusion
of shares held by directors and officers of the Company, the
representative may (subject to the allocation priority set forth below)
limit the number of Registrable Securities to be included in the
registration and underwriting to not less than twenty five percent (25%)
of the total number of shares to be included in such underwritten
offering, subject to the Company's compliance with any registration
obligations to any Demanding Holders (as hereinafter defined)
participating in such registration. The Company shall so advise all
holders of securities requesting registration, and the number of shares
of securities that are entitled to be included in the registration and
underwriting shall be allocated in the following manner: The securities
of the Company held by officers, directors (including representatives
and designees of Capital Z or the Series B Preferred Stock holders) and
Other Stockholders (other than Registrable Securities and other than
securities held by holders who by contractual
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<PAGE>
right demanded such registration ("Demanding Holders")) shall be
excluded from such registration and underwriting to the extent required
by such limitation, and, if a limitation on the number of shares is
still required, the number of shares that may be included in the
registration and underwriting by each of the Holders other than the
Demanding Holders shall be excluded from such registration to the extent
so required by such limitation. Thereafter, if still further reductions
are required, the number of shares included in the registration by each
of the Demanding Holders shall be reduced, on a pro rata basis (based on
the number of shares held by such Demanding Holders), by such minimum
number of shares as is necessary to comply with such limitation. If any
of the Holders or any officer, director or Other Stockholder disapproves
of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to the Company and the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration.
(iii) Number and Transferability. Each of the Holders shall
be entitled to have its shares included in an unlimited number of
registrations pursuant to this Section 2(b).
(c) Shelf Registration.
(i) If requested by the Initiating Holder at any time
after the date hereof, the Company shall file a "shelf" registration
statement pursuant to Rule 415 (if then available) under the Securities
Act (the "Shelf Registration") with respect to the resale of all or any
portion of the Registrable Securities, as requested by the Initiating
Holder. If such request is made, the Company shall (A) use its
reasonable best efforts to have the Shelf Registration declared
effective as promptly as practicable and (B) use its reasonable best
efforts to keep the Shelf Registration continuously effective from the
date such Shelf Registration is declared effective until the date
specified in Section 2(i) in order to permit the prospectus forming a
part thereof to be usable by Holders during such period. The Shelf
Registration may not include other securities of the Company which are
held by Other Stockholders.
(ii) The Company shall supplement or amend the Shelf
Registration, (A) as required by the registration form utilized by the
Company or by the instructions applicable to such registration form or
by the Securities Act or the rules and regulations promulgated
thereunder, (B) to include in such Shelf Registration any additional
securities that become Registrable Securities by operation of the
definition thereof and (C) following the written request of an
Initiating Holder pursuant to Section 2(c)(iii) below, to cover offers
and sales of all or a part of the Registrable
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Securities by means of an underwriting including the incorporation of
any information required pursuant to Section 2(e)(x) below. The Company
shall furnish to the Holders of the Registrable Securities to which the
Shelf Registration relates copies of any such supplement or amendment
sufficiently in advance (but in no event less than five business days in
advance) of its use and/or filing with the Commission to allow the
Holders a meaningful opportunity to comment thereon.
(iii) The Holders may, at their election and upon written
notice by the Initiating Holders to the Company, effect offers and sales
under the Shelf Registration by means of one or more underwritten
offerings, in which case the provisions of Section 2(a)(ii) above shall
apply to any such underwritten distribution of securities under the
Shelf Registration and such underwriting shall, if sales of Registrable
Securities pursuant thereto shall have closed, be regarded as the
exercise of one of the registration rights contemplated by Section 2(a)
hereof.
(iv) The rights of the Holders to request and effect a Shelf
Registration hereunder and the Company's obligations to keep a Shelf
Registration effective shall be subject to the restrictions and
limitations set forth in Section 2(a)(x), (y) and (z).
(d) Expenses of Registration. All Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
this Section 2 (including all Registration Expenses incurred in connection with
the Shelf Registration and any supplements or amendments thereto, whether or not
it becomes effective, and whether all, none or some of the Registrable
Securities are sold pursuant to the Shelf Registration) shall be borne by the
Company, and all Selling Expenses shall be borne by the Holders of the
securities so registered pro rata on the basis of the number of their shares so
registered; provided, however, that if, as a result of the withdrawal of a
request for registration by any of the Holders, as applicable, the registration
statement does not become effective, the Holders and Other Stockholders
requesting registration may elect to bear the Registration Expenses (pro rata on
the basis of the number of their shares so included in the registration request,
or on such other basis as such Holders and Other Stockholders may agree), in
which case such registration shall not be counted as a registration pursuant to
Section 2(a)(i)(B)(x).
(e) Registration Procedures. In the case of each registration
effected by the Company pursuant to this Section 2, the Company will keep the
Holders holding Registrable Securities requested to be included in such
registration ("Participating Holders") advised in writing as to the initiation
of each
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<PAGE>
registration and as to the completion thereof. At its expense, the Company will:
(i) other than the Shelf Registration, the obligations in
respect of which are set forth in Section 2(c)(i)(B) above, keep such
registration effective for a period of one hundred eighty (180) days or
until the Participating Holders, as applicable, have completed the
distribution described in the registration statement relating thereto,
whichever first occurs;
(ii) furnish to each Participating Holder, and to any
underwriter before filing with the Commission, copies of any
registration statement (including all exhibits) and any prospectus
forming a part thereof and any amendments and supplements thereto
(including, upon request, all documents incorporated or deemed
incorporated by reference therein) prior to the effectiveness of such
registration statement and including each preliminary prospectus, any
summary prospectus or any term sheet (as such term is used in Rule 434
under the Securities Act)) and any other prospectus filed under Rule 424
under the Securities Act, which documents, other than exhibits and
documents incorporated or deemed incorporated by reference, will be
subject the review of the Participating Holders and any such underwriter
for a period of at least five business days, and the Company shall not
file any such registration statement or such prospectus or any amendment
or supplement to such registration statement or prospectus to which any
Participating Holder or any such underwriter shall reasonably object
within five business days after the receipt thereof; a Participating
Holder or such underwriter(s), if any, shall be deemed to have
reasonably objected to such filing only if the registration statement,
amendment, prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(iii) furnish to each Participating Holder and to any
underwriter, such number of conformed copies of the applicable
registration statement and of each amendment and supplement thereto (in
each case including all exhibits) and such number of copies of the
prospectus forming a part of such registration statement (including each
preliminary prospectus, any summary prospectus or any term sheet (as
such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents,
including without limitation documents incorporated or deemed to be
incorporated by reference prior to the effectiveness of such
registration, as each of the Participating Holders or any such
underwriter, from time to time may reasonably request;
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<PAGE>
(iv) to the extent practicable, promptly prior to the filing
of any document that is to be incorporated by reference into any
registration statement or prospectus forming a part thereof subsequent
to the effectiveness thereof, and in any event no later than the date
such document is filed with the Commission, provide copies of such
document to the Participating Holders, if requested, and to any
underwriter, make representatives of the Company available for
discussion of such document and other customary due diligence matters;
(v) make available at reasonable times for inspection by
the Participating Holders, any underwriter participating in any
disposition pursuant to such registration and any attorney or accountant
retained by the Holders or any such underwriter, all financial and other
records, pertinent corporate documents and properties of the Company and
cause the officers, directors and employees of the Company to supply all
information reasonably requested by the Participating Holders and any
such underwriters, attorneys or accountants in connection with such
registration subsequent to the filing of the applicable registration
statement and prior to the effectiveness of the applicable registration
statement, subject to the execution of a customary confidentiality
agreement;
(vi) use its reasonable best efforts (x) to register or
qualify all Registrable Securities and other securities covered by such
registration under such other securities or blue sky laws of such States
of the United States of America where an exemption is not available and
as the sellers of Registrable Securities covered by such registration
shall reasonably request, (y) to keep such registration or qualification
in effect for so long as the applicable registration statement remains
in effect, and (z) to take any other action which may be reasonably
necessary or advisable to enable such sellers to consummate the
disposition in such jurisdictions of the securities to be sold by such
sellers, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in
any jurisdiction where it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to execute a general consent to
service of process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder;
(vii) use its reasonable best efforts to cause all
Registrable Securities covered by such registration statement to be
registered with or approved by such other federal or state governmental
agencies or authorities as may be necessary in the opinion of counsel to
the Company and
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<PAGE>
counsel to the Participating Holders of Registrable Securities to enable
the Holders thereof to consummate the disposition of such Registrable
Securities in accordance with the plan of distribution described in the
applicable registration statement;
(viii) subject to Section 2(i) hereof, promptly notify each
Holder of Registrable Securities covered by a registration statement (A)
upon discovery that, or upon the happening of any event as a result of
which, the prospectus forming a part of such registration statement, as
then in effect, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, (B) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of proceedings for that
purpose, (C) of any request by the Commission for (1) amendments to such
registration statement or any document incorporated or deemed to be
incorporated by reference in any such registration statement, (2)
supplements to the prospectus forming a part of such registration
statement or (3) additional information, (D) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, and at the request of any such Holder
promptly prepare and furnish to it a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ix) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of any such registration, or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction;
(x) if requested by a Participating Holder, or any
underwriter, subject to receipt of any required information from such
Holder or underwriter, promptly incorporate in such registration
statement or prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as the Participating Holder and
any underwriter may reasonably request to have included therein,
including, without limitation, information relating to the "plan of
distribution" of the Registrable Securities, information with respect to
the number of shares of
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Registrable Securities being sold to such underwriter, the
purchase price being paid therefor and any other terms of the offering
of the Registrable Securities to be sold in such offering and make all
required filings of any such prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to the Participating Holders, addressed to them,
an opinion of counsel for the Company, dated the date of the closing
under the underwriting agreement, if any, or the date of effectiveness
of the registration statement if such registration is not an
underwritten offering, and use its reasonable best efforts to furnish to
the Participating Holders, addressed to them, a "cold comfort" letter
signed by the independent certified public accountants who have
certified the Company's financial statements included in such
registration, covering substantially the same matters with respect to
such registration (and the prospectus included therein) and, in the case
of such accountants' letter, with respect to events subsequent to the
date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and such
other matters as the Participating Holders may reasonably request;
(xii) provide promptly to the Participating Holders upon
request any document filed by the Company with the Commission pursuant
to the requirements of Section 13 and Section 15 of the Exchange Act;
and
(xiii) use its reasonable best efforts to cause all
Registrable Securities included in any registration pursuant hereto to
be listed on each securities exchange on which securities of the same
class are then listed or, if not then listed on any securities exchange,
to be eligible for trading in any over-the-counter market or trading
system in which securities of the same class are then traded.
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each
person controlling each of the Holders (within the meaning of the
Securities Act), with respect to each registration which has been
effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any preliminary, final or summary prospectus,
offering circular
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<PAGE>
or other document (including any related registration statement,
notification or the like, or any amendment or supplement to any of the
foregoing) incident to any such registration, qualification or
compliance, or based on 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 any violation (or alleged
violation) by the Company of the Securities Act or the Exchange Act or
any rule or regulation thereunder or of any applicable state or common
law applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration,
qualification or compliance, and (subject to Section 2(f)(iii)) will
reimburse each of the Holders, each of its officers, directors and
partners, and each person controlling each of the Holders, each such
underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to
the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission based upon
and in conformity with written information furnished to the Company by
the Holders or underwriter and stated to be specifically for use
therein. The foregoing indemnification shall remain in effect regardless
of any investigation by any indemnified party and shall survive any
transfer or assignment by a Holder of its Registrable Securities or of
its rights pursuant to this Agreement.
(ii) Each of the Holders will, if Registrable Securities held
by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify on a several,
but not joint basis, the Company, each of its directors and officers and
each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such
underwriter, each Other Stockholder and each of their officers,
directors, and partners, and each person controlling such Other
Stockholder against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) made by such Holder of a
material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged
omission) made by such Holder to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such directors, officers,
partners, persons, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each
case to the
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<PAGE>
extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document
in reliance upon and in conformity with written information furnished to
the Company by such Holder and stated to be specifically for use
therein; provided, however, that the obligations of each of the Holders
hereunder shall be limited to an amount equal to the net proceeds to
such Holder of securities sold pursuant to such registration statement
or prospectus.
(iii) Each party entitled to indemnification under this
Section 2(f) (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party
to assume the defense of any such claim or any litigation resulting
therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting therefrom,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in
such defense at such party's expense (unless the Indemnified Party shall
have reasonably concluded upon advice from counsel that there may be a
conflict of interest between the Indemnifying Party and the Indemnified
Party in such action, in which case the reasonable fees and expenses of
one firm of counsel (and one local counsel) shall be at the expense of
the Indemnifying Party), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 2 except to
the extent the Indemnifying Party is materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party, consent to
entry of 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. Each Indemnified Party shall
promptly furnish such information regarding itself or the claim in
question as an Indemnifying Party may reasonably request in writing and
as shall be reasonably required in connection with the defense of such
claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f)
is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result
15
<PAGE>
of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party
on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss, liability,
claim, damage or expense, as well as any other relevant equitable
considerations, 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 any such fraudulent misrepresentation. The relative fault of
the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue (or alleged
untrue) statement of a material fact or the omission (or alleged
omission) to state a material fact relates to information supplied by
the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding the
foregoing, no Holder will be required to contribute any amount pursuant
to this paragraph (f) in excess of the total price at which the
Registrable Securities of such Holder were offered to the public (less
underwriting discounts and commissions, if any). Each Holder's
obligations to contribute pursuant to this paragraph are several in the
proportion that the proceeds of the offering received by such Holder
bears to the total proceeds of the offering received by all the
applicable Holders and not joint.
(v) The foregoing indemnity agreement of the Company and
Holders is subject to the condition that, insofar as they relate to any
loss, claim, liability or damage made in a prospectus, preliminary
prospectus or other offering document but eliminated or remedied in an
amended prospectus, preliminary prospectus or other offering document
delivered to an underwriter or Holder, as applicable (the "Final
Prospectus"), such indemnity agreement shall not inure to the benefit of
(A) any underwriter if a copy of the Final Prospectus was furnished to
the underwriter and was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is
required by the Securities Act or (B) in circumstances where no
underwriter is acting as such in the offer and sale in question, any
Holder who (1) either directly or through its agent provided the
preliminary prospectus to the Person asserting the loss, liability,
claim or damage, (2) was furnished with a copy of the Final Prospectus,
and (3) did not furnish or cause to be furnished the Final Prospectus to
the Person asserting the loss, liability, claim or damage at or prior to
the time such action is required by the Securities Act.
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(vi) Any indemnification payments required to be made to an
Indemnified Party under this Section 2(f) shall be made as the related
claims, losses, damages, liabilities or expenses are incurred.
(g) Information by the Holders. Each of the Holders holding
securities included in any registration shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Section 2. No Investor shall be required, in connection with
any underwriting agreements entered into in connection with any registration, to
provide any information, representations or warranties, or covenants with
respect to the Company, its business or its operations, and such Investors shall
not be required to provide any indemnification with respect to any registration
statement except as specifically provided for in Section 2(f)(ii) hereof.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times;
(ii) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 and of
the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as the Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing the Holder
to sell any such securities without registration.
(i) Termination. The registration rights set forth in this
Section 2 shall not be available to any Holder if, in the opinion of counsel to
the Company, all of the Registrable Securities then owned by such Holder could
be sold in any 90-day period pursuant to Rule 144 (without giving effect to the
provisions of Rule 144(k)) or at such time that no Registrable Securities are
outstanding. The Company will arrange for a
17
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provision to the transfer agent for such shares of an opinion of counsel in
connection with any such sale under Rule 144.
(j) Assignment. The registration rights set forth in Section 2
hereof may be assigned, in whole or in part, to any transferee of Registrable
Securities (who shall be considered thereafter to be a Holder and shall be bound
by all obligations and limitations of this Agreement).
(k) The Holders agree that, upon receipt of any notice from the
Company pursuant to Section 2(e)(viii), they shall immediately discontinue the
disposition of Registrable Securities pursuant to the registration statement
applicable to such Registrable Securities until they have received copies of the
amended or supplemented prospectus as described in Section 2(e)(viii). The
Holders shall destroy all copies in their possession of the registration
statement and related materials covering such Registrable Securities at the time
of receipt of the Company's notice.
3. MISCELLANEOUS
(a) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed entirely within such State.
(c) Section Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
(d) Notices.
(i) All communications under this Agreement shall be in
writing and shall be delivered by hand or by facsimile or mailed by
overnight courier or by registered or certified mail, postage prepaid:
(A) if to the Company, to Aames Financial Corporation,
2 California Plaza, 350 South Grand Avenue, Los Angeles,
California 90071, facsimile no. (323) 210-4537 or at such other
address or facsimile number as it may have furnished in writing
to the Investors;
(B) if to the Investors, at the address or facsimile
number listed on Schedule I hereto, or at
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such other address or facsimile number as may have been
furnished in writing to the Company.
(ii) Any notice so addressed shall be deemed to be given:
if delivered by hand or facsimile, on the date of such delivery; if
mailed by courier, on the first business day following the date of such
mailing; and if mailed by registered or certified mail, on the third
business day after the date of such mailing.
(e) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the parties
hereto by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and the parties hereto may destroy any
original document so reproduced. The parties hereto agree and stipulate that any
such reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by the Investors in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(g) Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto and supersedes all
prior understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Investors holding a majority of the then
outstanding Registrable Securities.
(h) Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not effect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first set forth above.
AAMES FINANCIAL CORPORATION
By:/s/ Barbara Polski
------------------
Name: Barbara Polski
Title: Executive VP,
General Counsel
INVESTORS:
CAPITAL Z FINANCIAL SERVICES FUND II,
L.P.,
By its General Partner
CAPITAL Z PARTNERS, L.P.,
By its General Partner
CAPITAL Z PARTNERS, LTD.
By:/s/ Adam M. Mizel
------------------
Name: Adam M. Mizel
Title: Partner
CAPITAL Z MANAGEMENT, INC.
By:/s/ Adam M. Mizel
------------------
Name: Adam M. Mizel
Title: Partner
20
<PAGE>
SCHEDULE I
Name and Address of Investors:
- ------------------------------
Capital Z Financial Services Fund, L.P.
One Chase Manhattan Plaza
New York, New York 10005
Attention: David Spuria, Esq.
Capital Z Management Inc.
One Chase Manhattan Plaza
New York, New York 10005
Attention: David Spuria, Esq.
This schedule will be amended to include (i) Designated Purchasers under the
Preferred Stock Purchase Agreement and (ii) the designees of Capital Z who will
receive any of the Warrants.
<PAGE>
Execution Copy
MANAGEMENT VOTING AGREEMENT
MANAGEMENT VOTING AGREEMENT dated as of December 23, 1998, among Capital Z
Financial Services Fund II, L.P., a Bermuda limited partnership ("Capital Z"),
and Cary Thompson and Neil Kornswiet (collectively, the "Shareholders").
WHEREAS, the Shareholders desire that the Aames Financial Corporation, a
Delaware corporation (the "Company"), and Capital Z enter into a Preferred Stock
Purchase Agreement dated as of the date hereof (as the same may be amended from
time to time, the "Purchase Agreement"), which provides, among other things,
that Capital Z, together with certain Capital Z affiliates and co-investors as
provided therein, will purchase shares of the Company's Series B Convertible
Preferred Stock, par value $0.001 per share ("Series B Preferred Stock") and
Series C Convertible Preferred Stock, par value $0.001 per share ("Series C
Preferred Stock," and, together with the Series B Preferred Stock, "Senior
Preferred Stock"), in the amounts and subject to the conditions set forth in the
Purchase Agreement; and
WHEREAS, the Shareholders are executing this Agreement as an inducement to
the Company and Capital Z to execute and deliver the Purchase Agreement.
NOW THEREFORE, in consideration of the execution and delivery by the
Company and Capital Z of the Purchase Agreement and the mutual covenants,
conditions and agreements contained therein and herein, the parties hereto agree
as follows:
SECTION 1. Representations and Warranties. Each of the Shareholders
severally and not jointly represents and warrants to the Company and Capital Z
as to himself (and not as to any other Shareholder) as follows:
(a) Such Shareholder is the record and beneficial owner of the number of
shares of the Company's common stock, par value $0.001 per share ("Common
Stock") (together with any shares of Common Stock or other voting securities of
the Company, including, without limitation, Senior Preferred Stock, with respect
to which the Shareholder obtains voting power after the date hereof, the
"Shares"), as set forth on hereto (which Exhibit shall be amended
after the date hereof to include any voting securities of the Company with
respect to which the Shareholder obtains voting power after the date hereof).
Except for such number of Shares and except for Shares, if any, (i) issuable in
connection with options outstanding as of the date hereof or (ii) which such
Shareholder has agreed to purchase in connection with the transactions
contemplated by the Purchase
<PAGE>
Agreement, such Shareholder is not the record or beneficial owner of any
shares of Common Stock.
(b) Such Shareholder has the authority to execute, deliver and perform this
Agreement without the necessity of obtaining any third party consent, approval,
authorization or waiver, or giving of any notice or otherwise, except for such
consents as have been obtained, are unconditional and are in full force and
effect.
(c) This Agreement has been duly executed and delivered by such Shareholder
and, assuming due execution and delivery thereof by the Company and Capital Z,
constitutes the legal, valid, and binding obligation of such Shareholder
enforceable against the Shareholder in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
enforcement is sought by proceedings in equity or at law).
(d) The execution, delivery, and performance of this Agreement by such
Shareholder will not (i) result in the breach of or constitute a default under
any contract to which such Shareholder is subject, (ii) constitute a violation
of any Law applicable or relating to such Shareholder or (iii) result in the
creation of any Lien.
(e) Except for this Agreement, there are no voting trusts or other
agreements or understandings, including, without limitation, any proxies, in
effect governing the voting of the Shares.
(f) Such Shareholder does not hold, and has not issued, any proxies, or
securities convertible into or exchangeable for or any options, warrants, or
other rights to purchase or subscribe for any shares of Common Stock.
(g) The Shares and the certificates representing such Shares are now and
until the earlier to occur of June 30, 1999 and consummation of the
Recapitalization will be held by such Shareholder, or by a nominee or custodian
for the benefit of such Shareholder, free and clear of all Liens, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever other than as created by this Agreement.
(h) Such Shareholder understands and acknowledges that the Company and
Capital Z are entering into the Purchase Agreement in reliance upon such
Shareholder's execution and delivery of this Agreement.
(i) There are no undertakings, agreements, arrangements or understandings
of the type required to be disclosed by the Company pursuant to Item 404 of
Regulation S-K
<PAGE>
under the Securities Act in filings by the Company with the Securities and
Exchange Commission in effect between such Shareholder, or any of his or her
affiliates, on the one hand, and the Company or any of its subsidiaries, on the
other hand, which have not been fully and completely disclosed, in writing, to
Capital Z.
SECTION 2. Voting Agreement. Each Shareholder agrees with, and covenants
to, Capital Z as follows:
(a) At the Shareholders' Meeting or at any adjournment thereof or in
any other circumstances upon which a vote, consent or other approval will
be held or solicited with respect to the increase of the authorized capital
stock of the Company as contemplated by the Purchase Agreement (the
"Charter Amendment"), such Shareholder shall vote (or cause to be voted) or
shall consent, execute a consent or cause to be executed a consent in
respect of the Shares in favor of the Charter Amendment and the Stock
Split.
(b) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought while the Purchase Agreement remains in
effect, such Shareholder shall vote (or cause to be voted) the Shares
against (i) any Alternative Transaction or any action which is a component
of any Alternative Transaction or would be a component of an Alternative
Transaction if it were contained in a proposal, or (ii) any other matter
submitted to the shareholders of the Company, including, without
limitation, any amendment of the Company's Certificate of Incorporation or
By-Laws, which matter would in any manner partially or wholly prevent or
materially impede, interfere with or delay any of the transactions
contemplated by the Purchase Agreement, as determined in good faith by
Purchaser and with respect to which Purchaser provides written notice to
the Shareholder.
(c) In the event that the Recapitalization (as defined in the Purchase
Agreement) is not consummated prior to June 30, 1999, each Shareholder
agrees to vote all Shares for which he has or shares the power to vote, or
grant a consent for approval in respect of such Shares in any manner
permitted by the DGCL, as such Shareholder is directed by the board of
directors of the Company, on any matters submitted to the shareholders of
the Company, other than the election of directors. The foregoing agreement
shall terminate automatically upon the termination of this Agreement with
respect to any Shares owned by such person upon transfer of such Shares
pursuant to Section 7. The Company shall be a third party beneficiary of
this Agreement for the purposes of this Section 2(c).
(d) Each Shareholder represents and warrants to the Company and
Capital Z that any proxies heretofore given in respect of the Shares are
not irrevocable, and that any such
<PAGE>
proxies are hereby revoked, to the extent in conflict with Section 2(c)
hereof.
(e) Each Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 2 is given in connection with the execution of the
Purchase Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Shareholder under this Agreement. Each
Shareholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. Each
Shareholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. Such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212(e) of the DGCL.
SECTION 3. Covenants of the Shareholder. Each Shareholder agrees with, and
covenants to, Capital Z that such Shareholder shall not on or prior to the
earlier to occur of June 30, 1999 or the consummation of the Recapitalization,
(i) transfer (which term shall include, without limitation, for the purposes of
this Agreement, any sale, gift, pledge, encumbrance (other than an unforeclosed
pledge or encumbrance for financing purposes where the Shareholder retains sole
voting power with respect to all pledged securities), or other disposition), or
consent to any transfer of, any or all the Shares or any interest therein,
unless the transferee(s) of such Shares agrees in writing to be bound by the
provisions of this Agreement applicable to such Shareholder, (ii) grant any
proxy, power-of-attorney or other authorization in or with respect to such
Shares, except under or in accordance or not in conflict with this Agreement, or
(iii) deposit such Shares into a voting trust, enter into a voting agreement or
arrangement with respect to such Shares or otherwise limit such Shareholder's
power to vote his or her Shares in a manner that conflicts with this Agreement.
SECTION 4. Certain Events. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Common Stock, or the acquisition of
additional shares of Common Stock or other voting securities of the Company by
such Shareholder, the number of Shares set forth in Section 1(a) hereof shall be
adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Common Stock or other voting securities of
the Company issued to or acquired by such Shareholder.
SECTION 5. Shareholder Capacity. No person executing this Agreement who is
or becomes a director of the Company makes any agreement or understanding herein
in his or her capacity as such director. Each Shareholder signs solely in such
Shareholder's capacity as the record and beneficial owner of the Shares.
<PAGE>
SECTION 6. Further Assurances. Each Shareholder shall, upon request of
Capital Z, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by Capital Z to be necessary or desirable to
carry out the provisions hereof.
SECTION 7. Termination. This Agreement, and all rights and obligations of
the parties hereunder, shall terminate upon the date upon which the
Recapitalization has been consummated and the Shareholder Approval has been
obtained or the Purchase Agreement is earlier terminated in accordance with its
terms, except that no Shareholder shall be relieved of any liability for breach
of this Agreement by such Shareholder prior to such termination. Further, this
Agreement shall terminate with respect to any Shares which are transferred as
permitted by Section 3 hereof.
SECTION 8. Defined Terms. Capitalized terms used and not otherwise defined
in this Agreement shall have the respective meanings assigned to them in the
Purchase Agreement.
SECTION 9. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be sufficiently given if sent by
registered or certified mail, postage prepaid, or overnight air courier service,
or telecopy or facsimile transmission (with hard copy to follow) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice): (i) if to Capital Z, to the address set forth in
Section 7.3 of the Purchase Agreement; and (ii) if to any Shareholder, to the
address set forth opposite such Shareholder's name on Exhibit A hereto.
SECTION 10. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 11. Counterparts; Effectiveness. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective as to any Shareholder when one or more
counterparts have been signed by Capital Z and such Shareholder and delivered to
Capital Z and such Shareholder.
SECTION 12. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement, and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
SECTION 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to any applicable conflicts of law principles of such State.
<PAGE>
SECTION 14. Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the parties
without the prior written consent of the other parties, except as expressly
contemplated by Section 3(a), and except that Capital Z may assign its rights
under this Agreement to any transferee of any of the Company's securities
acquired by it under the Purchase Agreement (and any such transferee may
similarly assign its rights in connection with any further transfer of such
securities, in whole or in part). Any assignment in violation of the foregoing
shall be void.
SECTION 15. Enforcement. Each party agrees that irreparable damage would
occur and that the other party hereto would not have any adequate remedy at law
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that each party shall be entitled to an injunction or
injunctions to prevent breaches by the other party hereto of this Agreement and
to enforce specifically the terms and provisions of this Agreement in any court
of the United States located in the State of Delaware or in Delaware State
court, this being in addition to any other remedy to which they are entitled at
law or in equity. In addition, each of the parties hereto (i) consents to submit
such party to the personal jurisdiction of any Federal court located in the
State of Delaware or any Delaware State court in the event any dispute arises
out of this Agreement or any of the transactions contemplated hereby, (ii)
agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iii)
agrees that such party will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a Federal
court sitting in the State of Delaware or a Delaware State court.
SECTION 16. Severability. If any term or provision hereof, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid or unenforceable with respect to
such jurisdiction, and only to such extent, and the remainder of the terms and
provisions hereof, and the application thereof to any other circumstance, shall
remain in full force and effect, shall not in any way be affected, impaired or
invalidated, and shall be enforced to the fullest extent permitted by law, and
the parties hereto shall reasonably negotiate in good faith a substitute term or
provision that comes as close as possible to the invalidated or unenforceable
term or provision, and that puts each party in a position as nearly comparable
as possible to the position each such party would have been in but for the
finding of invalidity or unenforceability, while remaining valid and
enforceable.
<PAGE>
SECTION 17. Amendment; Modification; Waiver. No amendment, modification or
waiver in respect of this Agreement shall be effective against any party unless
it shall be in writing and signed by such party.
<PAGE>
IN WITNESS WHEREOF, Capital Z and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
CAPITAL Z FINANCIAL SERVICES FUND II, L.P.,
By its General Partner
CAPITAL Z PARTNERS, L.P.,
By its General Partner
CAPITAL Z PARTNERS, LTD.
By: /s/ Adam M. Mizel
-----------------------------
Name: Adam M. Mizel
Title: Partner
SHAREHOLDERS:
/s/ Cary H. Thompson
---------------------------------
Cary Thompson
/s/ Neil B. Kornswiet
---------------------------------
Neil Kornswiet
<PAGE>
EXHIBIT A
Shareholder Shares of Options All Other
Common Stock Exercisable Options Owned
Owned within 60
days from
12/23/98
- ----------- ------------- ----------- -------------
Cary H. Thompson 21,900 900,759 719,541
1944 Fairburn Ave.
Los Angeles, CA 90025
Neil B. Kornsweit 1,822,860 575,000 80,000
16105 Whitecap Lane
Huntington Beach, CA 92649
<PAGE>
Execution Copy
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND UNDER ANY SUCH
APPLICABLE STATE LAWS, OR IN VIOLATION OF THE PROVISIONS OF THIS WARRANT.
FORM OF WARRANT
To Purchase Common Stock of
AAMES FINANCIAL CORPORATION
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS.........................................................1
ARTICLE 2. EXERCISE OF WARRANT.................................................4
Section 2.1. Manner of Exercise.......................................4
Section 2.2. Payment of Taxes.........................................5
Section 2.3. Fractional Shares........................................6
ARTICLE 3. TRANSFER, DIVISION AND COMBINATION..................................6
Section 3.1. Transfer.................................................6
Section 3.2. Division and Combination.................................6
Section 3.3. Expenses.................................................7
Section 3.4. Maintenance of Books.....................................7
ARTICLE 4. ADJUSTMENTS.........................................................7
Section 4.1. Stock Dividends, Subdivisions, Combinations
and Reclassifications....................................7
Section 4.2. Issuance of Additional Shares of Common Stock
or Convertible Securities.................................8
Section 4.3. Certain Other Distributions...............................9
Section 4.4. Other Provisions Applicable to Adjustments
Under This Section.......................................10
Section 4.5. Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets...................12
Section 4.6. Notices..................................................12
Section 4.7. Certificates.............................................13
ARTICLE 5. NO IMPAIRMENT......................................................13
ARTICLE 6. RESERVATION AND AUTHORIZATION OF COMMON STOCK;
REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL
AUTHORITY...................................................14
ARTICLE 7. STOCK AND WARRANT TRANSFER BOOKS...................................14
ARTICLE 8. RESTRICTIONS ON TRANSFERABILITY....................................14
Section 8.1. Restrictive Legend......................................14
Section 8.2. Transfers...............................................15
Section 8.3. Termination of Restrictions.............................16
ARTICLE 9. SUPPLYING INFORMATION..............................................16
ARTICLE 10. LOSS OR MUTILATION................................................16
ARTICLE 11. OFFICE OF THE COMPANY.............................................17
ARTICLE 12. REGISTRATION RIGHTS...............................................17
ARTICLE 13. LIMITATION OF LIABILITY...........................................17
i
<PAGE>
ARTICLE 14. REPRESENTATION OF HOLDER.........................................17
ARTICLE 15. MISCELLANEOUS....................................................17
Section 15.1. Nonwaiver and Expenses................................17
Section 15.2. No Rights As Stockholder..............................18
Section 15.3. Notice Generally......................................18
Section 15.4. Successors and Assigns................................18
Section 15.5. Amendment.............................................19
Section 15.6. Severability..........................................19
Section 15.7. Headings..............................................19
Section 15.8. Governing Law.........................................19
Section 15.9. Mutual Waiver of Jury Trial...........................19
ii
<PAGE>
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND UNDER ANY SUCH
APPLICABLE STATE LAWS, OR IN VIOLATION OF THE PROVISIONS OF THIS WARRANT.
WARRANT
To Purchase 1,250,000 Shares of Common Stock of
AAMES FINANCIAL CORPORATION
THIS IS TO CERTIFY THAT Capital Z Management, Inc., or its
registered assigns, is entitled, at any time prior to December 31, 2004 (the
"Expiration Date"), to purchase from Aames Financial Corporation, a Delaware
corporation (the "Company"), 1,250,000 shares of common stock, par value $0.001
per share, of the Company (the "Common Stock"), subject to adjustment as
provided herein, in whole or in part, including fractional parts, at a purchase
price of $1.00 per share (the "Exercise Price"), subject to adjustment as set
forth herein, all on the terms and conditions and pursuant to the provisions
hereinafter set forth. Capitalized terms not otherwise defined herein are used
as defined in the Preferred Stock Purchase Agreement.
ARTICLE 1.
DEFINITIONS
-----------
As used in this Warrant, the following terms have the respective
meanings set forth below:
"Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company after the Issue Date, other than Warrant
Stock.
"Business Day" shall mean any day that is not a Saturday or
Sunday or a day on which banks are required or permitted to be closed in the
State of New York.
"Capital Z" shall have the meaning set forth in the first
paragraph hereof.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall have the meaning set forth in the first
paragraph hereof.
"Company" shall have the meaning set forth in the first paragraph
hereof.
<PAGE>
"Conversion Price" shall have the meaning set forth in Section
4.2 hereof.
"Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities which are convertible into or exchangeable,
with or without payment of additional consideration in cash or property, for
Additional Shares of Common Stock, either immediately or upon the occurrence of
a specified date or a specified event, other than the Senior Preferred Stock and
the Contingent Warrant issued under the Preferred Stock Purchase Agreement.
"Current Market Price" shall mean, when used with reference to
shares of Common Stock or other securities on any date, the closing price per
share of Common Stock or such other securities on such date and, when used with
reference to shares of Common Stock or other securities for any period shall
mean the average of the daily closing prices per share of Common Stock or such
other securities for such period. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock or such other securities are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock or such
other securities are listed or admitted to trading or, if the Common Stock is
not listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. National Market System or such other
securities are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Common Stock or such other securities selected by the Board of Directors
of the Corporation. If the Common Stock or such other securities are not
publicly held or so listed or publicly traded, "Current Market Price" shall mean
the Fair Market Value per share of Common Stock or of such other securities as
determined in good faith by the Board of Directors of the Corporation based on
an opinion of an independent investment banking firm with an established
national reputation as a valuer of securities, which opinion may be based on
such assumption as such firm shall deem to be necessary and appropriate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
- 2 -
<PAGE>
"Exercise Price" shall have the meaning set forth in the first
paragraph hereof.
"Expiration Date" shall have the meaning set forth in the first
paragraph hereof.
"Fair Market Value" shall mean the amount which a willing buyer
would pay a willing seller in an arm's-length transaction.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as from time to time in effect.
"holder" shall mean, as the context requires, the Person in whose
name this Warrant is registered on the books of the Company maintained for such
purpose and/or the Person holding any Warrant Stock.
"Issue Date" shall mean the date on which this Warrant is issued.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, corporation or other entity and shall include
any successor (by merger or otherwise) of such entity.
"Preferred Stock Purchase Agreement" shall mean the Preferred
Stock Purchase Agreement, dated as of December 23, between the Company and
Capital Z.
"Registration Rights Agreement" shall mean the Registration
Rights Agreement, dated as of the date hereof, between the Company and Capital
Z.
"Restricted Common Stock" shall mean shares of Common Stock which
are, or which upon their issuance on the exercise of this Warrant would be,
evidenced by a certificate bearing the restrictive legend set forth in Section
8.1(a).
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder.
"Series B Preferred Stock" shall mean the Series B Convertible
Preferred Stock, par value $0.001 per share, to be issued pursuant to the
Preferred Stock Purchase Agreement.
"Series C Preferred Stock" shall mean the Series C Convertible
Preferred Stock, par value $0.001 per share, to be issued pursuant to the
Preferred Stock Purchase Agreement.
"Subsidiary" shall mean any corporation of which an aggregate of
more than 50% of the outstanding stock having
- 3 -
<PAGE>
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether, at the time, stock of any other class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time, directly or indirectly, owned
legally or beneficially by the Company and/or one or more Subsidiaries of the
Company.
"Trading Day" means a day on which the principal national
securities exchange on which the Common Stock is listed or admitted to trading
is open for the transaction of business or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, a Business Day.
"Transaction" shall have the meaning set forth in Section 4.5
hereof.
"transfer" shall mean any transfer, sale, encumbrance,
hypothecation or other disposition of this Warrant or any Warrant Stock or of
any interest in either thereof.
"Transfer Notice" shall have the meaning set forth in Section
8.2.
"Warrant Price" shall mean an amount equal to (i) the number of
shares of Common Stock being purchased upon exercise of this Warrant pursuant to
Section 2.1, multiplied by (ii) the Exercise Price as of the date of such
exercise.
"Warrant Stock" shall mean the shares of Common Stock purchased
by the holder of this Warrant upon the exercise thereof.
ARTICLE 2.
EXERCISE OF WARRANT
-------------------
Section 2.1. Manner of Exercise. From and after the date hereof
and until 5:00 P.M., New York time, on the Expiration Date, the holder may
exercise this Warrant for all or any part of the number of shares of Common
Stock purchasable hereunder.
In order to exercise this Warrant, in whole or in part, the
holder shall deliver to the Company at its office at 2 California Plaza, 350
South Grand Avenue, Los Angeles, California 90071, or at the office or agency
designated by the Company pursuant to Section 11, (i) a written notice of the
holder's election to exercise this Warrant, which notice shall specify the
number of shares of Common Stock to be purchased, (ii) payment of the Warrant
Price in the manner provided below, and (iii) this Warrant. Such notice shall be
substantially in the form of the subscription form appearing at the end of this
Warrant as Exhibit A, duly executed by or on behalf of the holder. Upon receipt
thereof, the Company shall, as promptly as practicable, and in any event within
five (5) Business Days thereafter, execute or
- 4 -
<PAGE>
cause to be executed and deliver or cause to be delivered to the holder a
certificate or certificates representing the aggregate number of full shares of
Common Stock issuable upon such exercise, together with cash in lieu of any
fraction of a share, as hereinafter provided. The stock certificate or
certificates so delivered shall be, to the extent possible, in such denomination
or denominations as such holder shall request in the notice and shall be
registered in the name of the holder or, subject to Section 8, such other name
as shall be designated in the notice. This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have been
issued, and the holder or any other Person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the date the notice, together with the cash, check or checks
and/or securities, if any, and this Warrant, are received by the Company as
described above and all taxes required to be paid by the holder, if any,
pursuant to Section 2.2 prior to the issuance of such shares have been paid. If
this Warrant shall have been exercised in part, the Company shall, at the time
of delivery of the certificate or certificates representing Warrant Stock,
deliver to the holder a new Warrant evidencing the rights of the holder to
purchase the unpurchased shares of Common Stock called for by this Warrant,
which new Warrant shall in all other respects be identical with this Warrant,
or, at the request of the holder, appropriate notation may be made on this
Warrant and the same returned to the holder.
Payment of the Warrant Price shall be made at the option of the
holder by cash, wire transfer to an account in a bank located in the United
States designated for such purpose by the Company, or certified or official bank
check, or by transfer to the Company of shares of Series B Preferred Stock or
Series C Preferred Stock, or any combination thereof. In the event of the
application shares of Series B Preferred Stock or Series C Preferred Stock to
the payment of the Warrant Price, the amount to be credited to the payment of
the Warrant Price shall be the Initial Stated Value per share, in the case of
any such application prior to the consummation of the Recapitalization, or the
Post-Recapitalization Stated Value per share, in the case of any such
application after the consummation of the Recapitalization, in each case, plus
an amount per share equal to all accrued and unpaid dividends thereon, whether
or not declared, to the date of such exercise, provided that no such credit
shall be made with respect to any such dividends if the holder of such shares
held such shares on the record date therefor.
Section 2.2. Payment of Taxes. The Company shall pay all expenses
in connection with, and all taxes and other governmental charges that may be
imposed with respect to, the issue or delivery of the Warrant Shares, unless
such tax or charge is imposed by law upon the holder, in which case such taxes
or charges shall be paid by the holder. The Company shall
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not be required, however, to pay any tax or other charge imposed in connection
with any transfer involved in the issue of any certificate for shares of Common
Stock issuable upon exercise of this Warrant in any name other than that of the
holder, and in such case the Company shall not be required to issue or deliver
any stock certificate until such tax or other charge has been paid or it has
been established to the satisfaction of the Company that no such tax or other
charge is due.
Section 2.3. Fractional Shares. The Company shall not be required
to issue a fractional share of Common Stock upon exercise of this Warrant. As to
any fraction of a share which the holder of this Warrant would otherwise be
entitled to purchase upon such exercise, the Company shall pay a cash adjustment
in respect of such final fraction in an amount equal to the same fraction of the
Current Market Price per share of Common Stock on the date of exercise.
ARTICLE 3.
TRANSFER, DIVISION AND COMBINATION
----------------------------------
Section 3.1. Transfer. Subject to compliance with Section 8,
transfer of this Warrant and all rights hereunder, in whole or in part, shall be
registered on the books of the Company to be maintained for such purpose, upon
surrender of this Warrant at the principal office of the Company referred to in
Section 2.1 or the office or agency designated by the Company pursuant to
Section 11, together with a written assignment of this Warrant substantially in
the form of Exhibit B hereto duly executed by the holder or its agent or
attorney and funds sufficient to pay any transfer taxes payable upon the making
of such transfer. Upon such surrender and, if required, such payment, the
Company shall, subject to Section 8, execute and deliver a new Warrant or
Warrants in the name(s) of the assignee or assignees and in the denomination(s)
specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be canceled. A Warrant, if properly assigned in
compliance with Section 8, may be exercised by a new holder for the purchase of
shares of Common Stock without having a new Warrant issued.
Section 3.2. Division and Combination. Subject to Section 8, this
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the holder or its agent or attorney. Subject to compliance with
Section 3.1 and with Section 8, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
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Section 3.3. Expenses. The Company shall prepare, issue and
deliver at its own expense (other than transfer taxes) the new Warrant or
Warrants under this Section 3.
Section 3.4. Maintenance of Books. The Company agrees to
maintain, at its aforesaid office or agency, books for the registration and the
registration of transfer of the Warrants.
ARTICLE 4.
ADJUSTMENTS
-----------
The number of shares of Common Stock for which this Warrant is
exercisable, or the price at which such shares may be purchased upon exercise of
this Warrant, shall be subject to adjustment from time to time as set forth in
this Section 4. The Company shall give the holder notice of any event described
below which requires an adjustment pursuant to this Section 4 at the time of
such event.
Section 4.1. Stock Dividends, Subdivisions, Combinations and
Reclassifications. If the Company shall at any time or from time to time after
the Issue Date:
(a) pay a dividend or make a distribution, on the outstanding
shares of Common Stock in Additional Shares of Common Stock,
(b) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock,
(c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, or
(d) issue by reclassification of its shares of Common Stock any
shares of capital stock of the Company,
then, and in each such case, the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby immediately prior to such event or the
record date therefor, whichever is earlier, shall be adjusted so that the holder
of any Warrant evidenced hereby thereafter exercised shall be entitled to
receive the number of shares of Common Stock or other securities of the Company
which such holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been exercised
immediately prior to the happening of such event or the record date therefor,
whichever is earlier. An adjustment made pursuant to this Section 4.1 shall
become effective (x) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of shares of Common Stock entitled to receive such dividend or
distribution, or (y) in the case of any such subdivision, reclassification or
combination, at the close of business on the day upon which such corporate
action becomes effective.
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<PAGE>
Section 4.2. Issuance of Additional Shares of Common Stock or
Convertible Securities. In the case the Corporation shall, after the Issue Date,
issue or sell:
(a) Additional Shares of Common Stock at a price per share, or
(b) Convertible Securities having a Conversion Price per share,
less than the Current Market Price (for a period of 15 consecutive Trading Days
prior to such date), then, and in each such case, the number of shares of Common
Stock issuable upon exercise of the Warrants evidenced hereby shall be adjusted
so that the holder of each Warrant evidenced hereby shall be entitled to
receive, upon the exercise thereof, the number of shares of Common Stock
determined by multiplying (A) the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby on the day immediately prior to such
date by (B) a fraction, the numerator of which shall be the sum of (1) the
number of shares of Common Stock outstanding on the date on which such shares or
Convertible Securities are issued and (2) the number of Additional Shares of
Common Stock issued, or into which the Convertible Securities may convert, and
the denominator of which shall be the sum of (x) the number of shares of Common
Stock outstanding on such date and (y) the number of shares of Common Stock
which the aggregate consideration receivable by the Company for the total number
of shares of Common Stock so issued, or the number of shares of Common Stock
which the aggregate of the Conversion Price of such Convertible Securities so
issued, would purchase at the Current Market Price on such date.
An adjustment made pursuant to this Section 4.2 shall be made on
the next Business Day following the date on which any such issuance is made and
shall be effective retroactively immediately after the close of business on such
date. For purposes of this Section 4.2, the aggregate consideration receivable
by the Company in connection with the issuance of any securities shall be deemed
to be the sum of the aggregate offering price to the public (before deduction of
underwriting discounts or commissions and expenses payable to third parties),
and the "Conversion Price" of any Convertible Securities is the total amount
received or receivable by the Company as consideration for the issue or sale of
such Convertible Securities (before deduction of underwriting discounts or
commissions and expenses payable to third parties) plus the minimum aggregate
amount of additional consideration, if any, payable to the Corporation upon the
conversion, exchange or exercise of any such Convertible Securities.
Neither (A) the issuance of any shares of Common Stock (whether
treasury shares or newly issued shares) pursuant to a dividend or distribution
on, or subdivision, combination or
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<PAGE>
reclassification of, the outstanding shares of Common Stock requiring an
adjustment in the number of shares of Common Stock issuable upon exercise of the
Warrants evidenced hereby pursuant to Section 4.1, or pursuant to any employee
benefit plan or program of the Company or pursuant to any option, warrant,
right, or Convertible Security outstanding as of the date hereof (including, but
not limited to, the Rights, the Series B Preferred Stock, the Series C Preferred
Stock and the Warrants) nor (B) the issuance of shares of Common Stock pursuant
thereto shall be deemed to constitute an issuance of Common Stock or Convertible
Securities by the Company to which this Section 4.2 applies.
Upon expiration of any Convertible Securities which shall not
have been exercised or converted and for which an adjustment shall have been
made pursuant to this Section 4.2, the Conversion Price computed upon the
original issue thereof shall upon expiration be recomputed as if the only
additional shares of Common Stock issued were such shares of Common Stock (if
any) actually issued upon exercise or conversion of such Convertible Securities
and the consideration received therefor was the consideration actually received
by the Corporation for the issue of such Convertible Securities (whether or not
exercised or converted) plus the consideration actually received by the
Corporation upon such exercise of conversion.
Section 4.3. Certain Other Distributions. In case the Company
shall at any time or from time to time after the Issue Date declare, order, pay
or make a dividend or other distribution (including, without limitation, any
distribution of stock or other securities or property or rights or warrants to
subscribe for securities of the Company or any of its Subsidiaries by way of
dividend or spin-off), on its Common Stock, other than:
(a) regular quarterly dividends payable in cash in an aggregate
amount not to exceed 15% of net income from continuing operations before
extraordinary items of the Company, determined in accordance with GAAP,
during the period (treated as one accounting period) commencing on July
1, 1998, and ending on the date such dividend is paid, or
(b) dividends or distributions of shares of Common Stock which
are referred to in Section 4.1,
then, and in each such case, the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby shall be adjusted so that the holder
of each share of each Warrant evidenced thereby shall be entitled to receive,
upon the exercise thereof, the number of shares of Common Stock determined by
multiplying (1) the number of shares of Common Stock issuable upon exercise of
the Warrants evidenced hereby on the day immediately prior to the record date
fixed for the determination of stockholders entitled to receive such dividend or
distribution by (2) a fraction, the numerator of which shall be the then
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Current Market Price per share of Common Stock for the period of 20 Trading Days
preceding such record date, and the denominator of which shall be the Current
Market Price per share of Common Stock for the period of 20 Trading Days
preceding such record date, less the Fair Market Value per share of Common Stock
(as determined in good faith by the Board of Directors of the Company, a
certified resolution with respect to which shall be mailed to the holder of the
Warrants evidenced hereby) of such dividend or distribution; provided, however,
that in the event of a distribution of shares of capital stock of a Subsidiary
of the Company (a "Spin-Off") made to holders of shares of Common Stock, the
numerator of such fraction shall be the sum of the Current Market Price per
share of Common Stock for the period of 20 Trading Days preceding the 35th
Trading Day after the effective date of such Spin-Off and the Current Market
Price of the number of shares (or the fraction of a share) of capital stock of
the Subsidiary which is distributed in such Spin-Off in respect of one share of
Common Stock for the period of 20 Trading Days preceding such 35th Trading Day
and the denominator of which shall be the Current Market Price per share of the
Common Stock for the period of 20 Trading Days proceeding such 35th Trading Day.
An adjustment made pursuant to this Section 4.3 shall be made upon the opening
of business on the next Business Day following the date on which any such
dividend or distribution is made and shall be effective retroactively
immediately after the close of business on the record date fixed for the
determination of stockholders entitled to receive such dividend or distribution;
provided, however, if the proviso to the preceding sentence applies, then such
adjustment shall be made and be effective as of such 35th Trading Day after the
effective date of such Spin-Off.
Section 4.4. Other Provisions Applicable to Adjustments Under
This Section. The following provisions shall be applicable to the making of
adjustments provided for in this Section 4:
(a) For purposes of this Section 4, the number of shares of
Common Stock at any time outstanding shall not include any shares of
Common Stock then owned or held by or for the account of the Company.
(b) The term "dividend", as used in this Section 4 shall mean a
dividend or other distribution upon stock of the Company except pursuant
to the Rights Agreement. Notwithstanding anything in this Section 4 to
the contrary, the number of shares of Common Stock issuable upon
exercise of the Warrants evidenced hereby shall not be adjusted as a
result of any dividend, distribution or issuance of securities of the
Company pursuant to the Rights Agreement.
(c) Notwithstanding anything in this Section 4 to the contrary,
the Company shall not be required to give effect to any adjustment in
the number of shares of Common
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Stock issuable upon exercise of the Warrants evidenced hereby unless and
until the net effect of one or more adjustments (each of which shall be
carried forward), determined as above provided, shall have resulted in a
change in the number of shares of Common Stock issuable upon exercise of
the Warrants evidenced hereby by at least one-hundredth of one share of
Common Stock, and when the cumulative net effect of more than one
adjustment so determined shall be to change the number of shares of
Common Stock issuable upon exercise of the Warrants evidenced hereby by
at least one-hundredth of one share of Common Stock, such change in the
number of shares of Common Stock issuable upon exercise of the Warrants
evidenced hereby shall thereupon be given effect.
(d) The certificate of any firm of independent public accountants
of recognized standing selected by the Board of Directors of the Company
(which may be the firm of independent public accountants regularly
employed by the Company) shall be presumptively correct for any
computation made under this Section 4.
(e) If the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, and shall thereafter and before the distribution to
stockholders thereof legally abandon its plan to pay or deliver such
dividend or distribution, then, no adjustment in the number of shares of
Common Stock issuable upon exercise of the Warrants evidenced hereby
shall be required by reason of the taking of such record.
(f) There shall be no adjustment of the number of shares of
Common Stock issuable upon exercise of the Warrants evidenced hereby in
case of the issuance of any stock of the Company in a merger,
reorganization, acquisition or other similar transaction except as set
forth in Sections 4.1, 4.2 and 4.5.
(g) Notwithstanding anything herein to the contrary, the Company
agrees not to enter into any transaction which, by reason of any
adjustment hereunder, would cause the Exercise Price to be less than the
par value per share of Common Stock.
(h) Upon each adjustment to the number of shares of Common Stock
issuable upon exercise of the Warrants pursuant to Sections 4.1, 4.2 or
4.3, the Exercise Price effective immediately prior to the making of
such adjustment shall thereafter be adjusted to be the amount obtained
by (i) multiplying (A) the applicable number of shares of Common Stock
issuable upon exercise of the Warrants immediately prior to such
adjustment by (B) the Exercise Price in effect immediately prior to such
adjustment and (ii) dividing the
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<PAGE>
product so obtained by the number of shares of Common Stock issuable
upon exercise of the Warrants immediately after such adjustment.
Section 4.5. Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets. In case of any reorganization or
reclassification of outstanding shares of Common Stock (other than a
reclassification covered by Section 4.1), or in case of any consolidation or
merger of the Company with or into another corporation, or in the case of any
sale or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety (each of the foregoing being referred
to as a "Transaction"), each such Warrant then outstanding shall thereafter be
exercisable for, in lieu of the Common Stock issuable upon such exercise prior
to consummation of the Transaction, the kind and amount of shares of stock and
other securities and property receivable (including cash) upon the consummation
of the Transaction by a holder of that number of shares of Common Stock issuable
upon exercise of such Warrant immediately prior to the Transaction (including,
on a pro rata basis, the cash, securities or property received by holders of
Common Stock in any tender or exchange offer that is a step in the Transaction).
Section 4.6. Notices to Warrantholders. In case at any time or
from time to time, prior to the Expiration Date, the Company shall pay any
dividend or make any other distribution to the holders of its Common Stock, or
shall offer for subscription pro rata to the holders of its Common Stock any
additional shares of stock of any class or any other right, or there shall be
any capital reorganization or reclassification of the Common Stock of the
Company or consolidation or merger of the Company with or into another
corporation, or any sale or conveyance to another corporation of the property of
the Company as an entirety or substantially as an entirety, or there shall be a
voluntary or involuntary dissolution, liquidation or winding up of the Company,
then, in any one or more of said cases the Company shall give at least 20 days'
prior written notice (the time of mailing of such notice shall be deemed to be
the time of giving thereof) to the registered holder of the Warrants evidenced
hereby at its address as shown on the books of the Company maintained by the
Transfer Agent thereof of the date on which (i) the books of the Company shall
close or a record shall be taken for such stock dividend, distribution or
subscription rights or (ii) such reorganization, reclassification,
consolidation, merger, sale or conveyance, dissolution, liquidation or winding
up shall take place, as the case may be, provided that in the case of any
Transaction to which Section 4.5 applies the Company shall give at least 30
days' prior written notice as aforesaid. Such notice shall also specify the date
as of which the holders of the Common Stock of record shall participate in said
dividend, distribution or subscription rights or shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger,
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sale or conveyance or participate in such dissolution, liquidation or winding
up, as the case may be. Failure to give such notice shall not invalidate any
action so taken.
Section 4.7. Certificates. Upon any adjustment of the number of
shares of Common Stock issuable upon exercise of the Warrants evidenced hereby
or of the Exercise Price, then, and in each such case, the Company shall
promptly deliver to the holders of the Warrants and the Common Stock, a
certificate signed by the President or a Vice President and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company
setting forth in reasonable detail the event requiring the adjustment and the
method by which such adjustment was calculated and specifying the increased or
decreased number of shares of Common Stock issuable upon exercise of the
Warrants evidenced hereby and the Exercise Price then in effect following such
adjustment.
ARTICLE 5.
NO IMPAIRMENT
-------------
The Company shall not by any action including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of the holder of the Warrant against impairment. Without limiting the
generality of the foregoing, the Company will (a) not increase the par value of
any shares of Common Stock receivable upon the exercise of this Warrant above
the Exercise Price immediately prior to such increase in par value, (b) take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock,
free and clear of any liens, claims, encumbrances and restrictions (other than
as provided herein) upon the exercise of this Warrant, and (c) use its best
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant.
Upon the request of the holder of the Warrant, the Company will
at any time during the period this Warrant is outstanding acknowledge in
writing, in form satisfactory to the holder of this Warrant, the continuing
validity of this Warrant and the obligations of the Company hereunder.
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ARTICLE 6.
RESERVATION AND AUTHORIZATION OF
COMMON STOCK; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY
--------------------------------------
The Company covenants and agrees that, until the Expiration Date,
the Company shall at all times reserve and keep available for issue upon the
exercise of Warrants such number of its authorized but unissued shares of Common
Stock as will be sufficient to permit the exercise in full of all outstanding
Warrants. All shares of Common Stock which shall be so issuable, when issued
upon exercise of Warrants and payment therefor in accordance with the terms of
such Warrant, shall be duly and validly issued, fully paid and nonassessable and
free and clear of any liens, claims and restrictions (other than as provided
herein). No stockholder of the Company has or shall have any preemptive rights
to subscribe for such shares of Common Stock.
Before taking any action which would result in an adjustment in
the number of shares of Common Stock for which this Warrant is exercisable or in
the Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
ARTICLE 7.
STOCK AND WARRANT TRANSFER BOOKS
--------------------------------
The Company will not at any time, except upon dissolution,
liquidation or winding up of the Company, close its stock transfer books or
Warrant transfer books so as to result in preventing or delaying the exercise or
transfer of any Warrant.
ARTICLE 8.
RESTRICTIONS ON TRANSFERABILITY
-------------------------------
The Warrants and the Warrant Stock shall not be transferred
before satisfaction of the conditions specified in this Section 8, which
conditions are intended to ensure compliance with the provisions of the
Securities Act and state securities laws with respect to the Transfer of any
Warrant or any Warrant Stock. The holder, by acceptance of this Warrant, agrees
to be bound by the provisions of this Section 8.
Section 8.1. Restrictive Legend.
(a) Except as otherwise provided in this Section 8, each
certificate for Warrant Stock initially issued upon the exercise of this
Warrant, and each certificate for Warrant Stock issued to any subsequent
transferee of any such certificate, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
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"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state and are subject to the conditions
specified in a certain Warrant dated January 4, 1998, originally
issued by Aames Financial Corporation. The shares represented by
this certificate may not be transferred in violation of such Act
and laws, the rules and regulations thereunder or the provisions
of the Warrant. A copy of the form of said Warrant is on file
with the Secretary of Aames Financial Corporation. The holder of
this certificate, by acceptance of this certificate, agrees to be
bound by the provisions of such Warrant."
(b) Except as otherwise provided in this Section 8, each Warrant
shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"This Warrant and the securities represented hereby have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state and may not be sold or otherwise
transferred in the absence of such registration or an exemption
therefrom under such Act and under any such applicable state
laws, or in violation of the provisions of this Warrant."
Section 8.2. Transfers. Prior to any transfer or attempted
transfer of any Warrants or any shares of Restricted Common Stock, the holder of
such Warrants or Restricted Common Stock shall give notice (a "Transfer Notice")
to the Company of such holder's intention to effect such transfer, describing
the manner and circumstances of the proposed transfer, and obtain from counsel a
written opinion addressed and reasonably satisfactory to the Company that the
proposed transfer of such Warrants or such Restricted Common Stock may be
effected without registration under the Securities Act and applicable state
securities laws. After receipt of the Transfer Notice and written opinion, the
Company shall, within two Business Days thereof, so notify the holder of such
Warrants or such Restricted Common Stock and such holder shall thereupon be
entitled to transfer such warrants or such Restricted Common Stock, in
accordance with the terms of the Transfer Notice. Each certificate, if any,
evidencing such shares of Restricted Common Stock issued upon such transfer
shall bear the restrictive legend set forth in Section 8.1(a), and each Warrant
issued upon such transfer shall bear the restrictive legend set forth in Section
8.1(b), unless in the written opinion of counsel addressed to the Company such
legend is not required in order to ensure compliance with the Securities Act.
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<PAGE>
Section 8.3. Termination of Restrictions. Notwithstanding the
foregoing provisions of Section 8, the restrictions imposed by this Section 8
upon the transferability of the Warrants, the Warrant Stock and the Restricted
Common Stock (or Common Stock issuable upon the exercise of the Warrants) and
the legend requirements of Section 8.1 shall terminate as to any particular
Warrant or share of Warrant Stock or Restricted Common Stock (or Common Stock
issuable upon the exercise of the Warrants) (i) as to the Warrant Stock and
Restricted Common Stock, when and so long as the resale of such security shall
have been effectively registered under the Securities Act and disposed of
pursuant thereto, or (ii) as to the Warrant, Warrant Stock and Restricted Common
Stock, when the holder of the Warrant, Warrant Stock or Restricted Common Stock
shall have delivered to the Company the written opinion of counsel addressed and
reasonably satisfactory to the Company stating that such legend is not required
in order to ensure compliance with the Securities Act. Whenever the restrictions
imposed by this Section shall terminate as to any share of Restricted Common
Stock, as hereinabove provided, the holder thereof shall be entitled to receive
from the Company, at the Company's expense (except for any transfer taxes), a
new certificate representing such Common Stock not bearing the restrictive
legend set forth in Section 8.1(a).
ARTICLE 9.
SUPPLYING INFORMATION
---------------------
The Company shall cooperate with the holder of the Warrant and
the holder of Restricted Common Stock in supplying such information as may be
reasonably requested by such holder or reasonably necessary for such holder to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of an exemption
from the Securities Act for the sale of any Warrant or Restricted Common Stock.
ARTICLE 10.
LOSS OR MUTILATION
------------------
Upon receipt by the Company from any holder of evidence
reasonably satisfactory to the Company of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and indemnity reasonably satisfactory
to it and in case of mutilation upon surrender and cancellation hereof, the
Company will execute and deliver in lieu hereof a new Warrant of like tenor to
the holder; provided, in the case of mutilation, no indemnity shall be required
if this Warrant in identifiable form is surrendered to the Company for
cancellation.
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ARTICLE 11.
OFFICE OF THE COMPANY
---------------------
As long as any of the Warrants remain outstanding, the Company
shall maintain an office or agency (which may be the principal executive offices
of the Company) where the Warrants may be presented for exercise, registration
of transfer, division or combination as provided in this Warrant.
ARTICLE 12.
REGISTRATION RIGHTS
-------------------
The Warrant Stock issuable upon exercise of this Warrant are
entitled to the benefits of the Registration Rights Agreement. The Company shall
keep a copy of the Registration Rights Agreement, and any amendments thereto, at
the office or agency designated by the Company pursuant to Section 11 and shall
furnish copies thereof to the holder upon request.
ARTICLE 13.
LIMITATION OF LIABILITY
-----------------------
No provision hereof, in the absence of affirmative action by the
holder to purchase shares of Common Stock, and no enumeration herein of the
rights or privileges of the holder hereof, shall give rise to any liability of
the holder for the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
ARTICLE 14.
REPRESENTATION OF HOLDER
------------------------
The holder represents that it is acquiring the Warrant and the
Warrant Stock for the purpose of investment and not with a view to the resale or
distribution hereof or thereof; provided, that the disposition of holder's
property shall at all times be and remain within its control.
ARTICLE 15.
MISCELLANEOUS
-------------
Section 15.1. Nonwaiver and Expenses. No course of dealing or any
delay or failure to exercise any right hereunder on the part of the parties
shall operate as a waiver of such right or otherwise prejudice the parties'
rights, powers or remedies. If the Company fails to comply with any provision of
this Warrant, the Company shall pay to the holder such amounts as shall be
sufficient to cover any costs and expenses including, but not limited to,
reasonable attorneys' fees incurred by the holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
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<PAGE>
Section 15.2. No Rights As Stockholder. The Person in whose name
this Warrant is registered shall be deemed the owner hereof and of the Warrants
evidenced hereby for all purposes. The registered holder of this Warrant shall
not be entitled to any rights whatsoever as a stockholder of the Company except
as herein provided.
Section 15.3. Notice Generally. Any notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder to be
made pursuant to the provisions of this Warrant shall be sufficiently given or
made if in writing and either delivered in person with receipt acknowledged or
sent by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) If to the holder, at its last known address appearing on the
books of the Company maintained for such purpose.
(b) If to the Company:
Aames Financial Corporation
2 California Plaza
350 South Grand Avenue
Los Angeles, California 90071
Attention: Cary Thompson
Fax No.: (323) 210-4537
with a copy to:
Troop Steuber Pasich Reddick & Tobey
2029 Century Park East
Los Angeles, California 90067
Attention: C. N. Franklin Reddick, Esq.
Fax No.: (310) 728-2204
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, or three (3) Business Days after the same
shall have been deposited in the United States mail.
Section 15.4. Successors and Assigns. Subject to the provisions
of Sections 3.1 and 8, (i) this Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors of the Company and
the successors and assigns of the holder, and (ii) the provisions of this
Warrant are intended to be for the benefit of all holders from time to time of
this Warrant, and shall be enforceable by any such holders.
- 18 -
<PAGE>
Section 15.5. Amendment. The Warrants may be modified or amended
or the provisions thereof waived with the written consent of the Company and the
holders of the majority of the portion of this Warrant then outstanding.
Section 15.6. Severability. Wherever possible, each provision of
this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Warrant.
Section 15.7. Headings. The headings used in this Warrant are for
the convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant.
Section 15.8. Governing Law. This Warrant shall be governed by
and construed in accordance with the laws of the State of Delaware, without
giving effect to conflicts of law principles thereof.
Section 15.10. Mutual Waiver of Jury Trial. BECAUSE DISPUTES
ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS WARRANT.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed by its authorized officer on January 4, 1999.
AAMES FINANCIAL CORPORATION
By: /s/ David A. Sklar
---------------------------
Name: David A. Sklar
Title: Executive Vice President
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<PAGE>
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for the purchase of _____ Shares of Common Stock of AAMES
FINANCIAL CORPORATION and herewith makes payment therefor, all at the price and
on the terms and conditions specified in this Warrant and requests that
certificates for the shares of Common Stock hereby purchased (and any securities
or other property issuable upon such exercise) be issued in the name of and
delivered to __________________ whose address is ____________________ and, if
such shares of Common Stock shall not include all of the shares of Common Stock
issuable as provided in this Warrant, that a new Warrant of like tenor and date
for the balance of the shares of Common Stock issuable hereunder be delivered to
the undersigned.
______________________ (Name of Registered Owner)
______________________ (Signature of Registered owner)
______________________ (Street Address)
______________________ (City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below all of
the rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
Name and Address of Assignee No. of Shares of Common Stock
and does hereby irrevocably constitute and appoint ____________ attorney-in-fact
to register such transfer on the books of AAMES FINANCIAL CORPORATION maintained
for the purpose, with full power of substitution in the premises.
Dated:___________________________
Name:____________________________
Signature:_______________________
Witness:_________________________
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
Joint Filing Agreement
The undersigned hereby agree that the statement on Schedule 13D with
respect to the shares of Common Stock of Aames Financial Corporation
is, and any amendment thereto signed by each of the undersigned shall
be, filed on behalf of each undersigned pursuant to and in accordance
with the provisions of 13d1-(k) under the Securities Exchange Act of
1934, as amended.
Dated: January 4, 1999
CAPITAL Z FINANCIAL SERVICES
FUND II, L.P., a Bermuda limited partnership
By: Capital Z Partners, L.P., a Bermuda
limited Partnership, its General Partner
By: Capital Z Partners, Ltd., a Bermuda
corporation, its General Partner
By:/s/ David A. Spuria
--------------------
Name:David A. Spuria
Title:General Counsel
CAPITAL Z PARTNERS, L.P.,
a Bermuda limited partnership
By: Capital Z Partners, Ltd., a Bermuda
corporation, its General Partner
By:/s/ David A. Spuria
--------------------
Name:David A. Spuria
Title:General Counsel
CAPITAL Z PARTNERS, LTD.,
a Bermuda corporation
By:/s/ David A. Spuria
--------------------
Name:David A. Spuria
Title:General Counsel
CAPITAL Z MANAGEMENT, INC.,
a Bermuda corporation
By:/s/ David A. Spuria
--------------------
Name:David A. Spuria
Title:General Counsel
