EXHIBIT 99.4
FORM OF SUBSCRIPTION AGENT AGREEMENT
Date:
ChaseMellon Shareholder Services, L.L.C.
00 Xxxxxxxxxx Xx.
Xxxxxxxxxx Xxxx, XX 00000
Attn: REORGANIZATION DEPARTMENT
Gentlemen:
Aames Financial Corporation, a Delware corporation (the "Company")
is making an offer to issue (the "Subscription Offer") to the holders of
record the Company's outstanding shares of Common Stock par value $0.001 per
share (the "Common Stock"), at the close of business on September 7, 1999
(the "Record Date"), the right to subscribe for and purchase (each a "Right")
shares of the Series Convertible Preferred Stock (the "Series C Preferred
Stock") at a purchase price of 1.00 per share of Series C Preferred Stock
(the "Subscription Price"), payable by cashier's or certified check, 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 5:00 PM, New York
City Time, on September 29, 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.
The Company filed a Registration Statement relating to the Series
C Preferred Stock with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, on AUGUST 13, 1999. Said Registration
Statement was declared effective on . The terms of the Series C Preferred
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, and the Letter of
Instruction 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 you with a list of holders of Common Stock as of the Record Date
(the "Record Stockholders List").
The Rights are evidenced by nontransferable Rights Certificates
(the "Rights Certificates"), a copy of the form of which is annexed hereto as
Exhibit 4. The Rights Certificates entitle the holders to subscribe, upon
payment of the Subscription Price, for shares of Series C Convertible
Preferred Stock at the rate of one share for each Right evidenced by a Right
Certificate (the "Subscription Privilege"). No fractional subscription rights
will be distributed. Reference is made to the prospectus for a complete
description of the Subscription Privilege .
The Company hereby appoints you as Subscription Agent (the
"Subscription Agent") for the Subscription Offer and agrees with you as
follows:
1) As Subscription Agent, you are authorized and directed to:
(A) Issue the Rights Certificates 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 Rights
Certificates 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 you receive the Record Stockholders List:
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(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 Rights
Certificates evidencing the Rights to which such stockholder is
entitled under the Subscription Offer, (ii) a copy of the
Prospectus, (iii) a Letter of Instruction and (iv) 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 and (ii) a Letter of
Instruction (different from the Letter of Instruction sent to
stockholders whose address of record is within the United States
and Canada). You shall refrain from mailing Right certificates
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 Rights
Certificates for the account of such stockholder 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 .
(C) [reserved]
(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 Rights Certificates and the Prospectus.
(E) Subject to the next sentence, accept Subscriptions from
stockholders whose Rights Certificates are alleged to have been lost, stolen
or destroyed upon receipt by you of an affidavit of theft, loss or
destruction and a bond of indemnity in form and substance satisfactory to
you, accompanied by payment of the Subscription Price for the total number of
shares of Series C Convertible Preferred 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 Rights
Certificates and you shall withhold delivery of the shares of Series C
Preferred Stock Subscribed for until after the Rights Certificates have
expired and it has been determined that the Rights evidenced by the Rights
Certificates 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 Rights Certificate is registered in the name of a
fiduciary and is executed by and the Series C Preferred Stock is
to be issued in the name of such fiduciary;
(b) if the Rights Certificate is registered in the name of joint
tenants and is executed by one of the joint tenants, provided the
certificate representing the Series C Preferred Stock is issued in
the names of, and is to be delivered to, such joint tenants;
(c) if the Right Certificate 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 Series C preferred stock is to be issued in
the name of such corporation; or
(d) if the Right Certificates 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 Series C Preferred 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) [reserved]
(H) Accept Subscriptions even though unaccompanied by Rights
Certificates, under the circumstances and in compliance with the terms and
conditions set forth in the Prospectus under the heading "THE RIGHTS
OFFERING--Exercise of Subscription Rights".
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(I) 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 Rights Certificates.
(J) 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 you shall
distribute to the Company the funds in such account and issue
certificates for shares of Series C Convertible Preferred Stock
issuable with respect to Subscriptions which have been accepted.
(b) advise the Company daily by telecopy and confirm by letter to
Xxxxx Xxxxx, Esq. (the "Company Representative"), as to the total
number of shares of Series C Preferred 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 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 paragraph (a) above,
with cumulative totals; and
(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 Series C Preferred Stock unsubscribed for.
(K) Upon completion of the Subscription Offer, you shall
requisition certificates from the Transfer Agent for the Common
Stock for shares of Series C Preferred Stock Subscribed for.
2) The Rights Certificates shall be issued in registered form
only. The Company shall appoint and have in office at all times a Transfer
Agent and Registrar for the Rights Certificates, satisfactory to you, which
shall keep books and records of the registration and transfers and exchanges
of Rights Certificates (such books and records are hereinafter called the
"Series C Preferred Stock Register"). The Company shall promptly notify the
Transfer Agent and Registrar of the exercise of any Rights Certificates. The
Company shall promptly notify you of any change in the Transfer Agent and
Registrar of the Rights Certificates.
3) You will follow your regular procedures to attempt to reconcile
any discrepancies between the number of shares of Series C Preferred Stock
that any Rights certificates 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 you cannot reconcile such
discrepancies by following such procedures, you will consult with the Company
for instructions as to the number of shares of Series C Convertible Preferred
Stock, if any, you are authorized to issue. In the absence of such
instructions, you are authorized not to issue any shares of Series C
Convertible Preferred Stock to such stockholder.
4) You will examine the Rights Certificates received by you as
Subscription Agent to ascertain whether they appear to you to have been
completed and executed in accordance with the applicable Letter of
Instruction. In the event you determine that any Rights Certificate does not
appear to you to have been properly completed or executed, or where the
Rights Certificates do not appear to you to be in proper form for
Subscription, or any other irregularity in connection with the Subscription
appears to you to exist, you will follow, where possible, your regular
procedures to attempt to cause such irregularity to be corrected. You are not
authorized to waive any irregularity in connection with the Subscription,
unless you shall have received from the Company the Rights Certificate which
was delivered, duly dated and signed by an authorized officer of the Company,
indicating that any irregularity in such Rights Certificates has been cured
or waived and that such Rights Certificate has been accepted by the Company.
If any such irregularity is neither corrected nor waived, you will return to
the subscribing stockholder (at your option by either first class mail under
a blanket surety bond or insurance protecting you and the Company from losses
or liabilities arising out of the non-receipt or nondelivery of Rights
Certificates or by registered mail insured separately for the value of such
Rights Certificates) to such stockholder's address as set forth in the
Subscription any Rights Certificates surrendered in connection therewith and
any other documents received with such Rights Certificates, and a letter of
notice to be furnished by the Company explaining the reasons for the return
of the Rights Certificates and other documents.
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5) Each document received by you relating to your 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 Series C Preferred 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, you will request the
Transfer Agent for the Common Stock to issue certificates evidencing the
appropriate number of shares of Series C Preferred 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 Series C Preferred Stock
issuable upon the exercise of the Rights Certificates 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 Rights Certificates or Series C
Preferred Stock issued upon exercise of Rights Certificates.
7) [reserved]
8) Should any issue arise regarding federal income tax reporting
or withholding, you will take such action as the Company instructs you in
writing.
9) The Company may terminate this Agreement at any time by so
notifying you in writing. You may terminate this Agreement upon 30 days'
prior notice to the Company. Upon any such termination, you shall be relieved
and discharged of any further responsibilities with respect to your duties
hereunder. Upon payment of all your outstanding fees and expenses, you will
forward to the Company or its designee promptly any Rights Certificates or
other document relating to your duties hereunder that you may receive after
your appointment has so terminated. Sections 10, 12, and 13 of this Agreement
shall survive any termination of this Agreement.
10) As agent for the Company hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or as may subsequently be
agreed to in writing by you and the Company;
(b) shall have no obligation to issue any shares of Series C
Preferred Stock unless the Company shall have provided a
sufficient number of certificates for such Series C
Preferred Stock;
(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or
genuineness of any Rights Certificates surrendered to you
hereunder or shares of Series C Preferred 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, you determine to take any legal action
hereunder, and where the taking of such action might, in
your judgment, subject or expose you to any expense or
liability you shall not be required to act unless you shall
have been furnished with an indemnity satisfactory to you;
(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 you
and believed by you to be genuine and to have been signed by
the proper party or parties;
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(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 you
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 you, including C.N.
Xxxxxxxx Xxxxxxx III, Esq., Troop Xxxxxxx Xxxxxx Xxxxxxx &
Xxxxx, LLP, and the advice of such counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered, or omitted by you hereunder in good
faith and in accordance with the advice of such counsel;
(j) may perform any of your duties hereunder either directly or
by or through agents or attorneys and you shall not be
liable or responsible for any misconduct or negligence on
the part of any agent or attorney appointed with reasonable
care by you hereunder; and
(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 your duties hereunder
or the rights of the Company or of any stockholders surrendering Rights
Certificates pursuant to the Subscription Offer, you shall not be required to
act and shall not be held liable or responsible for your refusal to act until
the question or dispute has been judicially settled (and, if appropriate, you
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 you and executed by the Company and each such stockholder and
party. In addition, you 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 you orally, as permitted by any
provision of this Agreement, shall be confirmed in writing by the Company as
soon as practicable. You 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 Rights Certificates are surrendered to you,
for your services as Subscription Agent hereunder, the Company shall pay to
you 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 you and your 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 Rights
Certificates 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 your 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 your duties hereunder, including without limitation the costs
and expenses of defending and appealing against any action, proceeding, suit or
claim in the premises. You 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 you be liable for
special, indirect or consequential loss or damages of any kind whatsoever
(including but not limited to lost profits), even if you have been advised of
the likelihood of such loss or damage and regardless of the form of action. Any
liability of yours will be limited to the amount of fees paid by the Company
hereunder.
Page 18
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.
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 you 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 you 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 its address set forth beneath its signature to this Agreement,
or, if to the Subscription Agent, to ChaseMellon Shareholder Services,
L.L.C., 00 xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx XX, 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 your
agreement concerning your appointment as Subscription Agent, and the
arrangements herein provided, by signing and returning the enclosed copy
hereof, whereupon this Agreement and your acceptance of the terms and
conditions herein provided shall constitute a binding Agreement between us.
Very truly yours,
(Company)
By:
------------------------------------
Name:
Title:
Address for notices:
Accepted as of the date
above first written:
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CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
AS SUBSCRIPTION AGENT
By:
Name:
Title:
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