EXHIBIT 10.11(b)
MANAGEMENT INVESTMENT AGREEMENT
MANAGEMENT INVESTMENT AGREEMENT (this "AGREEMENT") dated as
of October 1, 1999, between Aames Financial Corporation, a Delaware
corporation (the "COMPANY"), Xxxxxxx Xxxx, an individual residing at
[XXXADDRESS DELETED FOR PRIVACYXXX] (the "MANAGEMENT INVESTOR").
WHEREAS, the Management Investor is a senior management
employee of the Company; and
WHEREAS, the Management Investor desires to purchase from
the Company, and the Company desires to sell to the Management Investor,
shares of the Company's Series C Convertible Preferred Stock, par value
$0.001 per share ("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. SALE AND DELIVERY.
(a) Upon the terms and subject to the conditions set
forth herein, and in reliance upon the representations and warranties of the
Management Investor hereinafter set forth, the Company shall issue, sell and
deliver to the Management Investor, and the Management Investor shall
purchase from the Company, 150,000 shares 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 equal to $1.00.
(b) The purchase price for the Shares being purchased
by the Management Investor shall be paid by delivery by the Management
Investor to the Company of (i) $150,000 (the "Closing Payment").
(c) The purchase and sale of Shares shall occur at the
time and place specified by the Company for such closing, which shall be not
more than 60 days after the date hereof (the "CLOSING DATE"), and at the
closing of such purchase and sale of Shares:
(i) the Company shall deliver to the Management Investor
certificates representing the Shares (the "Certificates"), 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 the Closing
Payment to the Company.
SECTION 2. 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.
(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 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 OCTOBER 1, 1999, BETWEEN THE COMPANY
AND XXXXXXX XXXX, A COPY OF WHICH AGREEMENT HAS BEEN FILED
WITH THE SECRETARY OF THE COMPANY AND IS AVAILABLE UPON
REQUEST."
SECTION 3. RESTRICTIONS ON TRANSFER OF SHARES. For a period
commencing on the Closing Date and ending on the fifth anniversary of the
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 Financial Services Fund II. L.P. ("CAPITAL Z")
Beneficially Owns (as defined in the Purchase Agreement referred to below) less
than (A) fifty percent (50%) of the number of shares of Senior Preferred Stock
(as defined in the Purchase Agreement referred to below) purchased by Capital Z
on the Initial Closing Date (as defined in the Purchase Agreement referred to
below) (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 (as defined in the Purchase Agreement
referred to below)), in each case subject to adjustment for splits,
combinations, reclassifications and similar events; (ii) if the Management
Investor dies, retires, is terminated by the Company, or terminates his
employment with the Company, subject to the provisions of Section 4 hereof; or
(iii) a Change of Control (as defined in the New Option Plan (as such term is
defined in the Purchase Agreement referred to below)) 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 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. The "Purchase Agreement" referred to herein shall mean the
Preferred Stock Purchase Agreement by and between the Company and Capital Z,
dated as of December 23, 1998, as the same may be amended or modified.
SECTION 4. 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 4. 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 Series C Preferred
Stock) in effect as of such date by (II) the Current Market Price (as defined in
the Certificate of Designations for the Series C Preferred Stock) for the period
of 15 consecutive Trading Days (as defined in the Certificate of Designations
for the Series C 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. 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 6. 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 Aames Financial
Corporation, 2 California Plaza, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: General Counsel, telecopy number (000) 000-0000; 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 7. 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 8. 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 9. 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 10. 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 11. 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 12. 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 13. 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 14. 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 15. 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.
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: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President
MANAGEMENT INVESTOR:
/s/ XXXXXXX XXXX
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