EXHIBIT 99.1 - FORM OF SUBSCRIPTION AGENT AGREEMENT BETWEEN SMART & FINAL INC.
AND CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
[LETTERHEAD OF SMART & FINAL]
[Date _____, 1999]
ChaseMellon Shareholder Services, LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Reorganization Department
Gentlemen:
Smart & Final Inc., a Delaware corporation (the "Company") is making
an offer to issue (the "Subscription Offer") to the holders of record of its
outstanding shares of Common Stock par value $0.01 per share (the "Common
Stock"), at the close of business on ____________, 1999 (the "Record Date"), the
right to subscribe for and purchase (each a "Right") shares of Common Stock (the
"Additional Common Stock") at a purchase price of $__________ per share of
Additional Common Stock (the "Subscription Price"), payable by cashier's or
certified check or other acceptable methods as may be specified in the
Registration Statement referenced below, upon the terms and conditions set forth
herein. The term "Subscribed" shall mean submitted for purchase from the
Company by a stockholder in accordance with the terms of the Subscription Offer,
and the term "Subscription" shall mean any such submission. The Subscription
Offer will expire at __________ p.m. New York City Time, on _______________,
1999 (the "Expiration Time"), unless the Company shall have extended the period
of time for which the Subscription Offer is open, in which event the term
"Expiration Time" shall mean the latest time and date at which the Subscription
Offer, as so extended by the Company from time to time, shall expire.
This Subscription Agent Agreement ("Agreement") will define the
activities and related compensation which ChaseMellon Shareholder Services LLC
("ChaseMellon") will provide to the Company in conjunction with the Subscription
Offer.
The Company filed a Registration Statement relating to the Additional
Common Stock with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, on ____________________. 1999. Said Registration
Statement was declared effective on ____________________, 1999. The terms of
the Additional Common Stock are more fully described in the Prospectus forming
part of the Registration Statement as it was declared effective, and the
accompanying Letter of Instruction. Copies of the Prospectus, the Letter of
Instruction and the Notice of Guaranteed Delivery are annexed hereto as Exhibit
1, Exhibit 2 and Exhibit 3, respectively. All terms used and not defined herein
shall have the same meaning as in the Prospectus. Promptly after the Record
Date, the Company will provide ChaseMellon with a list of holders of Common
Stock as of the Record Date (the "Record Stockholders List").
The Rights are evidenced by transferable subscription warrants (the
"Warrants"), a copy of the form of which is annexed hereto as Exhibit 4. The
Warrants entitle the holders to subscribe, upon payment of the Subscription
Price, for shares of Additional Common Stock at the rate of One (1) share for
each ____ Rights evidenced by a Warrant (the "Basic Subscription Privilege").
No fractional shares will be issued. In the event that fractional shares would
be calculated as a result of the exchange ratio above, the number of
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shares of Additional Common Stock to be purchased will be rounded down to the
nearest full share and the fractional share amount shall be cancelled. Rights
are freely transferable among their holders and ChaseMellon will not make any
distinction between Rights issued directly to subscribing shareholders and those
Rights which have been validly and lawfully acquired by the subscribing
shareholder from another.
Further, the Subscription Offer provides that subscribing
shareholders, and only those subscribing shareholders who exercise their Rights
in full, may exercise an Oversubscription Privilege as more fully described in
the Registration Statement. ChaseMellon shall, after the initial allocation of
Additional Common Stock to those shareholders exercising their Basic
Subscription Privilege, allocate any remaining shares (and only to the extent
possible) to those shareholders who exercise the Oversubscription Privilege on a
pro-rata basis to their Basic Subscription, as more fully described in the
Registration Statement.
Further, any remaining shares of Additional Common Stock which have
not been subscribed as a result of the aggregate of elections made by
shareholders under the Basic Subscription Privilege and the Oversubscription
Privilege, shall be deemed the Unsubscribed Shares. Pursuant to that certain
agreement ("Standby Purchase Agreement") between the Company and its majority
shareholder, Casino USA, Inc. ("Casino"), Casino has agreed to purchase at the
Subscription Price all Unsubscribed Shares. Subject to the provisions of this
Agreement below, ChaseMellon is directed by the Company to allocate all
Unsubscribed shares to Casino, and receive proper payment for these shares, in
accordance with the Standby Purchase Agreement.
The Company hereby appoints ChaseMellon as Subscription Agent (the
"Subscription Agent") for the Subscription Offer and agrees with ChaseMellon as
follows:
1) As Subscription Agent, ChaseMellon is authorized and directed
to:
(A) Issue the Warrants in accordance with this Agreement in the names
of the holders of the Common Stock of record on the Record Date, keep such
records as are necessary for the purpose of recording such issuance, and furnish
a copy of such records to the Company. The Warrants may be signed on behalf of
the Subscription Agent by the manual or facsimile signature of a Vice President
or Assistant Vice President of the Subscription Agent, or by the manual
signature of any of its other authorized officers.
(B) Promptly after ChaseMellon receives the Record Stockholders List:
(a) mail or cause to be mailed, by first class mail, to each holder
of Common Stock of record on the Record Date whose address of record is within
the United States and Canada, (i) a Warrant evidencing the Rights to which such
stockholder is entitled under the Subscription Offer, (ii) a copy of the
Prospectus, (iii) a Letter of Instruction, (iv) a Notice of Guaranteed Delivery
and (v) a return envelope addressed to the Subscription Agent; and
(b) mail or cause to be mailed, by air mail, to each holder of Common
Stock of record on the Record Date whose address of record is outside the United
States and Canada, or is an A.P.O. or F.P.O. address (i) a copy of the
Prospectus, (ii) a Notice of Guaranteed Delivery and (iii) a Letter of
Instruction (different from the Letter of Instruction sent to stockholders whose
address of record is within the United States and Canada). ChaseMellon shall
refrain from mailing Warrants issuable to any holder of Common Stock of record
on the Record Date whose address of record is outside the United States and
Canada, or is an A.P.O. or F.P.O. address, and hold such Warrants for the
account of such stockholder
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subject to such stockholder making satisfactory arrangements with the
Subscription Agent for the exercise or other disposition of the Rights evidenced
thereby, and follow the instructions of such stockholder for the exercise, sale
or other disposition of such Rights if such instructions are received at or
before 11:00 a.m., New York City Time, on _________, 1999.
(C) Mail or deliver a copy of the Prospectus (i) to each assignee or
transferee of Warrants upon ChaseMellon's receiving appropriate documents to
register the assignment or transfer thereof and (ii) with certificates for
shares of Additional Common Stock when such are issued to persons other than the
registered holder of the Warrant.
(D) Accept Subscriptions upon the due exercise (including payment of
the Subscription Price) on or prior to the Expiration Time of Rights in
accordance with the terms of the Warrants and the Prospectus.
(E) Subject to the next sentence, accept Subscriptions from
stockholders whose Warrants are alleged to have been lost, stolen or destroyed
upon receipt by ChaseMellon of an affidavit of theft, loss or destruction and a
bond of indemnity in form and substance satisfactory to ChaseMellon accompanied
by payment of the Subscription Price for the total number of shares of
Additional Common Stock Subscribed for. Upon receipt of such affidavit and bond
of indemnity and compliance with any other applicable requirements, stop orders
shall be placed on said Warrants and ChaseMellon shall withhold delivery of the
shares of Additional Common Stock Subscribed for until after the Warrants have
expired and it has been determined that the Rights evidenced by the Warrants
have not otherwise been purported to have been exercised or otherwise
surrendered.
(F) Accept Subscriptions, without further authorization or direction
from the Company, without procuring supporting legal papers or other proof of
authority to sign (including without limitation proof of appointment of a
fiduciary or other person acting in a representative capacity), and without
signatures of co-fiduciaries, co-representatives or any other person:
(a) if the Warrant is registered in the name of a fiduciary and is
executed by and the Additional Common Stock is to be issued in the name of such
fiduciary;
(b) if the Warrant is registered in the name of joint tenants and is
executed by one of the joint tenants, provided the certificate representing the
Additional Common Stock is issued in the names of, and is to be delivered to,
such joint tenants;
(c) if the Warrant is registered in the name of a corporation and is
executed by a person in a manner which appears or purports to be done in the
capacity of an officer, or agent thereof, provided the Additional Common Stock
is to be issued in the name of such corporation; or
(d) if the Warrant is registered in the name of an individual and is
executed by a person purporting to act as such individual's executor,
administrator or personal representative, provided, the Additional Common Stock
is to be registered in the name of the subscriber as executor or administrator
of the estate of the deceased registered holder and there is no evidence
indicating the subscriber is not the duly authorized representative that he
purports to be.
(G) Accept applications to transfer Warrants and to act therein as a
Transfer Agent for this limited purpose, without further authorization or
direction from the Company, without procuring supporting legal papers or other
proof of authority to sign (including without limitation proof of appointment of
a fiduciary or other person acting in a
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representative capacity), and without signatures of co-fiduciaries, co-
representatives or any other person:
(a) if the Warrant is registered in the name of a fiduciary and is
executed by and the Additional Common Stock is to be issued in the name of such
fiduciary;
(b) if the Warrant is registered in the name of joint tenants and is
executed by one of the joint tenants, provided the certificate representing the
Additional Common Stock is issued in the names of, and is to be delivered to,
such joint tenants;
(c) if the Warrant is registered in the name of a corporation and is
executed by a person in a manner which appears or purports to be done in the
capacity of an officer, or agent thereof, provided the Additional Common Stock
is to be issued in the name of such corporation; or
(d) if the Warrant is registered in the name of an individual and is
executed by a person purporting to act as such individual's executor,
administrator or personal representative, provided, the Additional Common Stock
is to be registered in the name of the subscriber as executor or administrator
of the estate of the deceased registered holder and there is no evidence
indicating the subscriber is not the duly authorized representative that he
purports to be.
(H) Accept Subscriptions not accompanied by Warrants if submitted by
a firm having membership in the New York Stock Exchange or another national
securities exchange or by a commercial bank or trust company having an office in
the United States together with the Notice of Guaranteed Delivery and
accompanied by proper payment for the total number of shares of Additional
Common Stock Subscribed for.
(I) Accept Subscriptions even though unaccompanied by Warrants, under
the circumstances and in compliance with the terms and conditions set forth in
the Prospectus under the heading "The Rights Offering--Special Procedure Under
Notice of Guaranteed Delivery Form."
(J) Refer to the Company for specific instructions as to acceptance
or rejection, Subscriptions received after the Expiration Time, Subscriptions
not authorized to be accepted pursuant to this Paragraph 1, and Subscriptions
otherwise failing to comply with the requirements of the Prospectus and the
terms and conditions of the Warrants.
(K) Upon acceptance of a Subscription:
(a) hold all monies received in a special account for the benefit of
the Company. Promptly following the Expiration Time ChaseMellon shall
distribute to the Company the funds in such account and issue certificates for
shares of Additional Common Stock issuable with respect to Subscriptions which
have been accepted.
(b) advise the Company daily by telecopy and confirm by letter to
Xxxx X. Xxxxxxxxx, Esq., Assistant General Counsel (the "Company
Representative"), with a copy to Xxxxxxx X. Xxxxxxx, Vice President & Treasurer
(by telecopy) as to the total number of shares of Additional Common Stock
Subscribed for, total number of Rights sold, total number of Rights partially
Subscribed for and the amount of funds received, with cumulative totals for
each; and in addition advise the Company Representative, by telephone to Xxxx X.
Xxxxxxxxx, Esq. at (000) 000-0000 , confirmed by telecopy, of the amount of
funds received identified in accordance with (a) above, deposited, available or
transferred in accordance with (a) above, with cumulative totals; and
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(c) as promptly as possible but in any event on or before 3:30 p.m.,
New York City Time, on the first full business day following the Expiration
Time, advise the Company Representative in accordance with (b) above of the
number of shares Subscribed for, the number of Subscription guarantees received
and the number of shares of Additional Common Stock unsubscribed for.
(L) Upon completion of the Subscription Offer, ChaseMellon shall
requisition certificates from the Transfer Agent for the Common Stock for shares
of Additional Common Stock Subscribed for.
2) (a) The Warrants shall be issued in registered form only. The
Company shall appoint and have in office at all times a Registrar for the
Warrants, satisfactory to ChaseMellon, which shall keep books and records of the
registration and transfers and exchanges of Warrants (such books and records are
hereinafter called the "Warrant Register"). The Company shall promptly notify
the Transfer Agent and Registrar of the exercise of any Warrants. The Company
shall promptly notify ChaseMellon of any change in the Registrar of the
Warrants.
(b) All Warrants issued upon any registration of transfer or
exchange of Warrants shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Agreement, as
the Warrants surrendered for such registration of transfer or exchange.
(c) Any Warrant when duly endorsed in blank shall be deemed
negotiable, and when a Warrant shall have been so endorsed the holder thereof
may be treated by the Company, ChaseMellon and all other persons dealing
therewith as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented thereby, any notice to the contrary
notwithstanding, but until such transfer is registered in the Warrant Register,
the Company and ChaseMellon may treat the registered holder thereof as the owner
for all purposes.
3) ChaseMellon will follow its regular procedures to attempt to
reconcile any discrepancies between the number of shares of Additional Common
Stock that any Warrant may indicate are to be issued to a stockholder and the
number that the Record Stockholders List indicates may be issued to such
stockholder. In any instance where ChaseMellon cannot reconcile such
discrepancies by following such procedures, ChaseMellon will consult with the
Company for instructions as to the number of shares of Additional Common Stock,
if any, ChaseMellon is authorized to issue. In the absence of such
instructions, ChaseMellon is authorized not to issue any shares of Additional
Common Stock to such stockholder.
4) ChaseMellon will examine the Warrants received by it as
Subscription Agent to ascertain whether they appear to ChaseMellon to have been
completed and executed in accordance with the applicable Letter of Instruction.
In the event ChaseMellon determine that any Warrant does not appear to it to
have been properly completed or executed, or where the Warrants do not appear to
ChaseMellon to be in proper form for Subscription, or any other irregularity in
connection with the Subscription appears to ChaseMellon to exist, it will
follow, where possible, its regular procedures to attempt to cause such
irregularity to be corrected. ChaseMellon is not authorized to waive any
irregularity in connection with the Subscription, unless it shall have received
from the Company the Warrant which was delivered, duly dated and signed by an
authorized officer of the Company, indicating that any irregularity in such
Warrant has been cured or waived and that such Warrant has been accepted by the
Company. If any such irregularity is neither corrected nor waived, ChaseMellon
will return to the subscribing stockholder (at ChaseMellon's option by
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either first class mail under a blanket surety bond or insurance protecting
ChaseMellon and the Company from losses or liabilities arising out of the non-
receipt or nondelivery of Warrants or by registered mail insured separately for
the value of such Warrants) to such stockholder's address as set forth in the
Subscription any Warrants surrendered in connection therewith and any other
documents received with such Warrants, and a letter of notice to be furnished by
the Company explaining the reasons for the return of the Warrants and other
documents.
5) Each document received by ChaseMellon relating to its duties
hereunder shall be dated and time stamped when received.
6) (a) For so long as this Agreement shall be in effect, the
Company will reserve for issuance and keep available free from preemptive rights
a sufficient number of shares of Additional Common Stock to permit the exercise
in full of all Rights issued pursuant to the Subscription Offer. Subject to the
terms and conditions of this Agreement, ChaseMellon will request the Transfer
Agent for the Common Stock to issue certificates evidencing the appropriate
number of shares of Additional Common Stock as required from time to time in
order to effectuate the Subscriptions.
(b) The Company shall take any and all action, including without
limitation obtaining the authorization, consent, lack of objection, registration
or approval of any governmental authority, or the taking of any other action
under the laws of the United States of America or any political subdivision
thereof, to insure that all shares of Additional Common Stock issuable upon the
exercise of the Warrants at the time of delivery of the certificates therefor
(subject to payment of the Subscription Price) will be duly and validly issued
and fully paid and nonassessable shares of Common Stock, free from all
preemptive rights and taxes, liens, charges and security interests created by or
imposed upon the Company with respect thereto.
(c) The Company shall from time to time take all action
necessary or appropriate to obtain and keep effective all registrations,
permits, consents and approvals of the Securities and Exchange Commission and
any other governmental agency or authority and make such filings under Federal
and state laws which may be necessary or appropriate in connection with the
issuance, sale, transfer and delivery of Warrants or Additional Common Stock
issued upon exercise of Warrants.
7) If certificates representing shares of Additional Common Stock
are to be delivered by ChaseMellon to a person other than the person in whose
name a surrendered Warrant is registered, ChaseMellon will issue no certificate
for Additional Common Stock until the Warrant so surrendered has been properly
endorsed (or otherwise put in proper form for transfer) and the person
requesting such exchange has paid any transfer or other taxes or governmental
charges required by reason of the issuance of a certificate for Additional
Common Stock in a name other than that of the registered holder of the Warrant
surrendered, or has established to ChaseMellon's satisfaction that any such tax
or charge either has been paid or is not payable.
8) Should any issue arise regarding federal income tax reporting or
withholding, ChaseMellon will take such action as the Company instructs
ChaseMellon in writing.
9) The Company may terminate this Agreement at any time by so
notifying ChaseMellon in writing. ChaseMellon may terminate this Agreement upon
30 days' prior notice to the Company. Upon any such termination, ChaseMellon
shall be relieved and discharged of any further responsibilities with respect to
its duties hereunder. Upon payment of all outstanding ChaseMellon fees and
expenses, ChaseMellon will forward to the Company
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or its designee promptly any Warrant or other document relating to ChaseMellon's
duties hereunder that ChaseMellon may receive after its appointment has so
terminated. Sections 11, 12, and 14 of this Agreement shall survive any
termination of this Agreement.
10) As agent for the Company hereunder ChaseMellon:
(a) shall have no duties or obligations other than those specifically
set forth herein or as may subsequently be agreed to in writing by ChaseMellon
and the Company;
(b) shall have no obligation to issue any shares of Additional Common
Stock unless the Company shall have provided a sufficient number of certificates
for such Additional Common Stock;
(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of any
Warrants surrendered to ChaseMellon hereunder or shares of Additional Common
Stock issued in exchange therefor, and will not be required to or be responsible
for and will make no representations as to, the validity, sufficiency, value or
genuineness of the Subscription Offer;
(d) shall not be obligated to take any legal action hereunder; if,
however, ChaseMellon determines to take any legal action hereunder, and where
the taking of such action might, in its judgment, subject or expose ChaseMellon
to any expense or liability it shall not be required to act unless ChaseMellon
shall have been furnished with an indemnity satisfactory to it;
(e) may rely on and shall be fully authorized and protected in acting
or failing to act upon any certificate, instrument, opinion, notice, letter,
telegram, telex, facsimile transmission or other document or security delivered
to ChaseMellon and believed by it to be genuine and to have been signed by the
proper party or parties;
(f) shall not be liable or responsible for any recital or statement
contained in the Prospectus or any other documents relating thereto;
(g) shall not be liable or responsible for any failure on the part of
the Company to comply with any of its covenants and obligations relating to the
Subscription Offer, including without limitation obligations under applicable
securities laws;
(h) may rely on and shall be fully authorized and protected in acting
or failing to act upon the written, telephonic or oral instructions with respect
to any matter relating to ChaseMellon acting as Subscription Agent covered by
this Agreement (or supplementing or qualifying any such actions) of officers of
the Company;
(i) may consult with counsel satisfactory to ChaseMellon, including
Xxxxxx X. Xxxxxxxx, Esq., general counsel of the Company, and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered, or omitted by ChaseMellon hereunder in good faith
and in accordance with the advice of such counsel;
(j) may perform any of ChaseMellon's duties hereunder either directly
or by or through agents or attorneys and ChaseMellon shall not be liable or
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with reasonable care by ChaseMellon hereunder; and
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(k) are not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person.
11) In the event any question or dispute arises with respect to the
proper interpretation of the Subscription Offer or ChaseMellon's duties
hereunder or the rights of the Company or of any stockholders surrendering
Warrants pursuant to the Subscription Offer, ChaseMellon shall not be required
to act and shall not be held liable or responsible for its refusal to act until
the question or dispute has been judicially settled (and, if appropriate,
ChaseMellon may file a suit in interpleader or for a declaratory judgment for
such purpose) by final judgment rendered by a court of competent jurisdiction,
binding on all parties interested in the matter which is no longer subject to
review or appeal, or settled by a written document in form and substance
satisfactory to ChaseMellon and executed by the Company and each such
stockholder and party. In addition, ChaseMellon may require for such purpose,
but shall not be obligated to require, the execution of such written settlement
by all the stockholders and all other parties that may have an interest in the
settlement.
12) Any instructions given to ChaseMellon orally, as permitted by
any provision of this Agreement, shall be confirmed in writing by a duly
authorized representative of the Company as soon as practicable. ChaseMellon
shall not be liable or responsible and shall be fully authorized and protected
for acting, or failing to act, in accordance with any oral instructions which do
not conform with the written confirmation received in accordance with this
Section.
13) Whether or not any Warrants are surrendered to ChaseMellon, for
its services as Subscription Agent hereunder, the Company shall pay to
ChaseMellon compensation in accordance with the fee schedule attached as Exhibit
A hereto, together with reimbursement for out-of-pocket expenses, including
reasonable fees and disbursements of counsel.
14) The Company covenants to indemnify and hold ChaseMellon and its
officers, directors, employees, agents, contractors, subsidiaries and affiliates
harmless from and against any loss, liability, damage or expense (including
without limitation any loss, liability, damage or expense incurred for accepting
Warrants tendered without a signature guarantee and the fees and expenses of
counsel) incurred (a) without gross negligence or bad faith or (b) as a result
of ChaseMellon's acting or failing to act upon the Company's instructions,
arising out of or in connection with the Subscription Offer, this Agreement or
the administration of ChaseMellon's duties hereunder, including without
limitation the costs and expenses of defending and appealing against any action,
proceeding, suit or claim in the premises. ChaseMellon shall promptly notify the
Company of any action, proceeding, suit or claim by letter or telex or facsimile
transmission confirmed by letter. The Company shall be entitled to participate
at its own expense in the defense of any such action, proceeding, suit or claim.
Anything in this agreement to the contrary notwithstanding, in no event shall
ChaseMellon be liable for special, indirect or consequential loss or damages of
any kind whatsoever (including but not limited to lost profits), even if
ChaseMellon have been advised of the likelihood of such loss or damage and
regardless of the form of action. Any liability of ChaseMellon's will be limited
to the amount of fees paid by the Company hereunder.
15) If any provision of this Agreement shall be held illegal,
invalid, or unenforceable by any court, this Agreement shall be construed and
enforced as if such provision had not been contained herein and shall be deemed
an Agreement among us to the full extent permitted by applicable law.
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16) The Company represents and warrants that (a) it is duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, (b) the making and consummation of the
Subscription Offer and the execution, delivery and performance of all
transactions contemplated thereby (including without limitation this Agreement)
have been duly authorized by all necessary corporate action and will not result
in a breach of or constitute a default under the certificate of incorporation or
bylaws of the Company or any indenture, agreement or instrument to which it is a
party or is bound, (c) this Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid, binding and enforceable obligation
of it, (d) the Subscription Offer will comply in all material respects with all
applicable requirements of law and (e) to the best of its knowledge, there is no
litigation pending or threatened as of the date hereof in connection with the
Subscription Offer.
17) In the event that any claim of inconsistency between this
Agreement and the terms of the Subscription Offer arise, as they may from time
to time be amended, the terms of the Subscription Offer shall control, except
with respect to the duties, liabilities and rights, including compensation and
indemnification of ChaseMellon as Subscription Agent, which shall be controlled
by the terms of this Agreement.
18) Set forth in Exhibit B hereto is a list of the names and
specimen signatures of the persons authorized to act for the Company under this
Agreement. The Secretary of the Company shall, from time to time, certify to
ChaseMellon the names and signatures of any other persons authorized to act for
the Company under this Agreement.
19) Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communications under this Agreement shall be in
writing, shall be effective upon receipt and shall be addressed, if to the
Company, to Smart & Final Inc., 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, General Counsel, or, if to the Subscription
Agent, to ChaseMellon Shareholder Services LLC, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Reorganization Department, or to such other address
as a party hereto shall notify the other parties.
20) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to conflict of
laws rules or principles, and shall inure to the benefit of and be binding upon
the successors and assigns of the parties hereto; provided that this Agreement
may not be assigned by any party without the prior written consent of all other
parties.
21) No provision of this Agreement may be amended, modified or
waived, except in a written document signed by both parties.
Please acknowledge receipt of this letter and confirm ChaseMellon's
agreement concerning ChaseMellon's appointment as Subscription Agent and
Transfer Agent, and the arrangements herein provided, by signing and returning
the enclosed copy hereof, whereupon this Agreement and ChaseMellon's acceptance
of the terms and conditions herein provided shall constitute a binding Agreement
between the parties hereto.
Very truly yours,
SMART & FINAL INC.
By: _____________________________________
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Name:
Title:
Accepted as of the date first written above:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
AS SUBSCRIPTION AGENT AND TRANSFER AGENT
By: _____________________________
Name:
Title:
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EXHIBIT "1"
The Registration Statement shall be incorporated herein.
EXHIBIT "2"
The Letter of Instruction shall be incorporated herein.
EXHIBIT "3"
The Notice of Guaranteed Delivery shall be incorporated herein.
EXHIBIT "4"
The Form of Warrant shall be incorporated herein.
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EXHIBIT "A"
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Schedule of Fees as Subscription Agent
For Smart & Final Inc.
I. Set Up and Administrative Fee $7,500.00
II. Processing Basic subscriptions, each $ 14.00
III. Transferring warrants, subscription certificates, split-ups,
reissuing new certificates, round-ups, each $ 10.00
IV. Issuing subscription certificates to record date holders,
each, and follow-up mailings $ 5.00
V. Processing oversubscriptions, including proration and
refunds, each $ 10.00
VI. Sale of Rights for holders, each $ 10.00
VII. Subscriptions requiring additional handling (window items,
defective presentations, correspondence items, legal items,
and items not providing a taxpayer identification number),
each $ 10.00
VIII. Processing Guarantee of Delivery items, each $ 10.00
IX. Handling Soliciting Dealer payments, each By Appraisal
X. Special Services By Appraisal
XI. Out-of-pocket Expenses (including but not limited to
postage, stationery, telephones, overnight couriers,
messengers, overtime, dinners, transportation, shipping
and trucking) Additional
A minimum aggregate fee of $25,000.00 shall apply, inclusive of fees above which
are paid on a utilization basis.
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EXHIBIT "B"
[Letterhead of Smart & Final]
Name Position Specimen Signatures
---- -------- -------------------
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