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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
Whittaker Corporation
- --------------------------------------------------------------------------------
(NAME OF ISSUER)
Common Stock, par value $0.01 per share
- --------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
C 96680 40 7
- --------------------------------------------------------------------------------
(CUSIP NUMBER)
Larry D. Hunter, Hughes Electronics Corporation
200 N. Sepulveda Boulevard, El Segundo, CA 90245
(310) 726-4850
- --------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS)
May 4, 1998
- --------------------------------------------------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
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 box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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SCHEDULE 13D
- --------------------- -----------------
CUSIP NO. C96680 40 7 Page 2 of Pages
- --------------------- -----------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hughes Electronics Corporation
52-1106564
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /x/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED / /
PURSUANT TO ITEMS 2(d) or 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF -------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY -------------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
991,752
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
991,752
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.1%
- --------------------------------------------------------------------------------
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> 3
SCHEDULE 13D
- ---------------------- -----------------
CUSIP NO. C 96680 40 7 Page 3 of Pages
- ---------------------- -----------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
General Motors Corporation
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF -------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY -------------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
991,752
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
991,752
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.1%
- --------------------------------------------------------------------------------
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> 4
Page 4
Item 1. Security and Issuer
This statement constitutes Amendment No. 1 (the "Amendment") to that
certain Schedule 13D initially filed by the Reporting Persons on or about May 4,
1995 (the "Statement") and relates to shares of Common Stock, $0.01 par value
("Common Stock"), of Whittaker Corporation, a Delaware corporation (the
"Issuer"). The principal executive offices of the Issuer are located at 1955 N.
Surveyor Avenue, Simi Valley, CA 93063.
Item 2. Identity and Background
This Amendment is being filed by Hughes Electronics Corporation, a
Delaware corporation ("HE") and General Motors Corporation, a Delaware
corporation ("GM") (GM and HE are collectively referred to herein as the
"Reporting Persons"). HE is a direct wholly owned subsidiary of GM. HE has been
assigned, and has assumed, all rights and obligations of the entities formerly
named "Hughes Electronics Corporation" and "Hughes Aircraft Company" under the
Note (as defined in the Statement) and the related Registration Rights
Agreement.
HE is engaged in four industry segments: satellite manufacturing,
wholesale satellite distribution services, telecommunications networks, and
satellite television broadcast.
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The address of its principal business and principal office is 200 N. Sepulveda
Boulevard, El Segundo, California 90245.
GM is principally engaged in the automotive products industry business,
consisting of the design, manufacture, assembly and sale of automobiles, trucks
and related parts and accessories. It also has financing, insurance, defense and
automotive electronics operations. The address of its principal business and
principal office is 100 Renaissance Center, Detroit, Michigan 48243.
Schedules I and II hereto list each executive officer and director of
HE and GM, respectively, and the business address, present principal occupation
or employment of each such executive officer and director, as well as the name,
principal business and address of any corporation or other organization in which
such employment is conducted.
During the last five years, neither any of the Reporting Persons nor,
to the best knowledge of the Reporting Persons, any of the other persons named
in this Item 2 has been convicted in a criminal proceeding (excluding traffic
violations of similar misdemeanors).
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During the last five years, neither any of the Reporting Persons nor,
to the best knowledge of the Reporting Persons, any of the other persons named
in this Item 2 was 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.
To the best of the knowledge of Reporting Persons, with the exception
of Percy Barnevik, a director of GM, who is a citizen of Sweden, and Eckhard
Pfeiffer, a director of both GM and HE, who is a citizen of Germany, all of the
persons named in Schedules I and II of this Item 2 are citizens of the United
States.
Item 3. Source and Amount of Funds or Other Consideration
There has been no change to the information previously reported under
Item 3 of the Statement, and as to additional shares which may be acquired as a
result of this transaction, information is provided in Item 5 hereof.
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Item 4. Purpose of Transaction
There has been no change to the information previously reported under
Item 4 of the Statement, and as to additional shares which may be acquired as a
result of this transaction, information is provided in Item 5 hereof.
The Note is held by HE and is beneficially owned by the Reporting
Persons. The Note was acquired by HE on April 24, 1995, for investment purposes,
as partial consideration for the sale of a subsidiary of HE to the Issuer. The
Reporting Persons may make additional purchases of Common Stock of the Issuer
either in the open market or in private transactions, depending upon each
Reporting Person's evaluation of the Issuer's business, prospects and financial
condition, the market for the Common Stock of the Issuer, other opportunities
available to the Reporting Persons, general economic conditions, money and stock
market conditions, regulatory approvals and other future developments. Depending
upon the factors set forth above, the Reporting Persons may decide to hold or
dispose of all or part of the Note or any Common Stock of the Issuer which may
be received if HE elects to convert the Note, in whole or in part. The Reporting
Persons may formulate proposals, and take action, as matters as they may
determine.
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Page 8
Except as described herein, the Reporting Persons have no present plan
or proposal which relates to or would result in:
(a) the acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer, or the disposition of securities
of the Issuer;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Issuer or any
of the is subsidiaries;
(d) any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend policy of
the Issuer;
(f) any other material change in the Issuer's business or corporate
structure;
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Page 9
(g) changes in the Issuer's charter or bylaws or other actions which may
impede the acquisition of control of the Issuer by any person;
(h) causing the Common Stock of the Issuer to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities association;
(i) the Common Stock of the Issuer becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities Exchange Act of
1934; or
(j) any action similar to any of those enumerated above.
The Reporting Persons reserve the right to formulate such plans or proposals,
and to take such action, with respect to any or all of the foregoing matters and
any other matters as they may determine.
Item 5. Interest in Securities of the Issuer
(a) In connection with the sale by HE to Issuer of its interests in Hughes
LAN Systems, Inc. ("LAN") as previously
<PAGE> 10
Page 10
disclosed, the Issuer agreed to make periodic contingent payments to HE in an
amount equal to a percentage of the revenues received by the Issuer from the
operations of LAN. However, since April 28, 1996, the Issuer has been restricted
from making these contingent payments, under the terms of one of its credit
agreements between Issuer and a Lender unrelated to the Reporting Persons. In
order to provide for those payments, among other things, the purchase agreement
relating to the sale of LAN has been amended by the Second Amendment to Stock
Purchase Agreement ("Second Amendment") between the Issuer and HE, under which
the Issuer may elect to pay the Unpaid Contingent Payment (as defined in the
Second Amendment) in cash or in shares of its Common Stock. Issuer and HE have
agreed that the aggregate amount of the Unpaid Contingent Payment is $1,432,565;
under the terms of the Second Amendment, upon Issuer's election to pay the
Unpaid Contingent Payment in shares of Issuer's Common Stock, HE would be
entitled to receive 107,840 shares of Issuer's Common Stock (111.11% of the
amount of the Unpaid Contingent Payment divided by $14.76). Issuer has notified
HE that it has elected to pay the Unpaid Contingent Payment in Shares of
Issuer's Common Stock, and Reporting Persons expect to receive certificates
representing such shares shortly.
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Page 11
Additional consideration for the transaction which is the subject of
this Amendment is the resolution of disputes between the parties and execution
of a mutual release.
In addition to establishing a procedure for payment of the Unpaid
Contingent Payment, the parties have amended the Note to provide for a reduction
in the price per share conversion price from $24-1/4 to $16.97, in accordance
with Section 4.1 of the Note. Further, new Section 3.1(f) was added to the Note
by Allonge No. 1 attached hereto as Exhibit V to provide for the prospective
issuance of warrants to HE if the Issuer redeems the Note in whole or in part
prior to May 4, 2002 ("Prospective Warrants"). In the event of any such
redemption, Issuer must issue Prospective Warrants to HE in an amount equal to
the number of shares that would have been issuable if the redeemed Note (or
portion thereof) had instead been converted into Common Stock. The exercise
price of the Prospective Warrants will equal the conversion price under Section
4.1 of the Note (as amended by the Allonge No. 1), and the Prospective Warrants
will expire on May 4, 2002. The Prospective Warrants, if issued for all of the
principal currently outstanding under the Note, would entitle HE to purchase up
to 883,912 shares of Common Stock at an exercise price of $16.97 per share.
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Page 12
Any Shares of Issuer's Common Stock HE may acquire upon settlement of
the Unpaid Contingent Payment, upon conversion of the Note as amended, or upon
exercise of the Prospective Warrants, are subject to registration rights in
favor of HE, as described in Item 6 below.
As a result of Issuer's election to pay the Unpaid Contingent Payment
in shares, HE will be the beneficial owner of 107,840 shares of Common Stock
which represents approximately 0.88% of Issuer's Common Stock. HE also has a
contingent interest in Issuer's Common Stock which arises from the Prospective
Warrants to be issued if Issuer prepays the Note or otherwise redeems it prior
to May 4, 2002. Last, HE retains the right to convert unpaid principal of the
Note (which principal has neither been redeemed nor repurchased) in increments
not less than $1,000,000, or the remaining balance of the Note if less, to
shares of Common Stock at a conversion price of $16.97 per share at any time up
to and including April 25, 2005. As of this date the Note could be converted by
the Holder into 883,912 shares of Common Stock, or approximately 7.25% of
Issuer's issued and outstanding Common Stock. If HE immediately converted the
entire principal remaining unpaid under the Note, HE would own approximately
8.1% of Issuer's Common Stock, including the shares to be issued to HE in
settlement of the Unpaid Contingent Payment. As the parent of HE, GM is the
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Page 13
indirect beneficial owner of the Prospective Warrants and any or all such shares
of Common Stock if and when received. These percentages are based upon the
information set forth in the most recent Quarterly Report on Form 10-Q filed by
the Issuer with the Securities and Exchange Commission dated January 31, 1998.
To the best knowledge of the Reporting Persons, as of May 5, 1998, none
of the persons (other than the Reporting Persons) named in Item 2 beneficially
own, or had the right to acquire, shares of Common Stock of the Issuer.
(b) As the sole stockholder of HE, GM may be deemed to share with HE the
power to vote or to direct the vote, and the power to dispose or direct the
disposition of any shares of Common Stock which may be issued to HE. Until HE's
conversion of the unpaid principal under the Note, or exercise of the
Prospective Warrants, neither HE nor GM has any voting rights with respect to
the Common Stock issuable upon such conversion or exercise, as such voting
rights would only arise upon receipt of the actual shares. As the sole
stockholder of HE, GM may be deemed to share with HE the right to direct the
disposition or conversion of the Note and the disposition or exercise of the
Prospective Warrants. If and to the extent HE elects to convert the Note into
Common Stock or to exercise the Prospective Warrants, GM may be deemed to share
with HE the power to vote or to direct the vote, and the power to
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Page 14
dispose or to direct the disposition of, the shares of Common Stock of the
Issuer issued to HE.
(c) Except as described above, none of the Reporting Persons and, to the
best knowledge of the Reporting Persons, none of the persons (other than the
Reporting Persons) named in Item 2, have engaged in any transaction in the
Common Stock of the Issuer during the sixty days preceding the date of this
Amendment.
(d) The Reporting Persons do not know of any other person having the right
to receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the shares of Common Stock of the Issuer beneficially owned by
the Reporting Persons.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
The following descriptions are qualified in their entirety by reference
to the documents previously filed and those attached as exhibits hereto and
incorporated herein by reference.
<PAGE> 15
Page 15
Second Amendment to Stock Purchase Agreement
(the "Second Amendment")
The Second Amendment was executed by the Issuer and HE as of May 4,
1998, and evidences the resolution of disputes between the parties arising out
of the transaction described in the original Schedule 13D. The Second Amendment
provides, among other things, that at Issuer's election, HE will be paid cash or
will be issued 107,840 shares of Common Stock in settlement of the Unpaid
Contingent Payment discussed above. Under the Second Amendment, any Shares of
Issuer's Common Stock HE may acquire upon settlement of the Unpaid Contingent
Payment, upon conversion of the Note as amended, or upon exercise of the
Prospective Warrants, are subject to the registration rights granted under the
Registration Rights Agreement as described in the Statement. In particular, upon
the issuance of Shares in settlement of the Unpaid Contingent Payment, the
Issuer must file with the Securities and Exchange Commission a registration
statement covering such Shares on or before June 3, 1998. HE will continue to
have the right to demand an additional registration under the Registration
Rights Agreement with respect to any shares it may acquire in the future,
including upon any conversion of the Note or exercise of the Prospective
Warrants.
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Allonge No. 1:
(Convertible Subordinated Note as Amended)
The original Note was issued to HE on April 24, 1995, as partial
consideration for the sale to the Issuer of all the shares of common stock of
Hughes LAN Systems, Inc., which was an indirect wholly-owned subsidiary of HE.
Allonge No. 1 to the Note was executed on May 4, 1998, in connection with the
execution of the Second Amendment.
The Note is in the original principal amount of $15,000,000, bears
interest in at the rate of 7% per annum, payable semiannually, and the entire
principal balance is due on May 1, 2005. The Note may be prepaid at any time, in
whole or in part, and is subordinated to Senior Indebtedness of the Issuer. In
the event of a change in control of the Issuer, HE may, at its option, require
the Issuer to repurchase the Note, without premium or penalty. If the Note is
redeemed in full or in part prior to May 4, 2002, the Issuer has agreed to issue
the Prospective Warrants to purchase up to 883,912 shares of Common Stock at an
exercise price of $16.97 per share, subject to antidilution adjustment as
provided in the form of warrant. The Prospective Warrants will expire on May 4,
2002.
In addition, the Note is convertible at any time by the Holder into
shares of Common Stock of the Issuer, at an amended
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Page 17
conversion price of $16.97 per share, subject to antidilution adjustment as
provided in the Note.
Item 7. Material to be Filed as Exhibits
*Exhibit I: Convertible Subordinated Note dated April 24, 1995
*Exhibit II: Registration Rights Agreement dated April 24, 1995
*Exhibit III: Joint Filing Agreement of Reporting Persons
**Exhibit IV: Second Amendment to Stock Purchase Agreement
**Exhibit V: Allonge No. 1 and form of Warrant
*previously filed
**filed herewith
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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.
HUGHES ELECTRONICS CORPORATION
By: /s/ Larry D. Hunter
----------------------------
Name: Larry D. Hunter
Title: Assistant Secretary
Dated: May 14, 1998
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Page 19
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.
GENERAL MOTORS CORPORATION
By: /s/ Martin I. Darvick
----------------------------
Name: Martin I. Darvick
Title: Assistant Secretary
Dated: May 14, 1998
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Page 20
SCHEDULE I
HUGHES ELECTRONICS CORPORATION
EXECUTIVE OFFICERS AND DIRECTORS
Unless otherwise specified, the business address of each person listed
below is 200 N. Sepulveda Boulevard, El Segundo, California 90245.
<TABLE>
<CAPTION>
Name and Address Position with HE Principal Occupation or
Employment
<S> <C> <C>
Roxanne S. Austin Senior Vice President and Chief HE Senior Vice President and
Financial Officer Chief Financial Officer
Gareth C. C. Chang Senior Vice President HE Senior Vice President
Steven D. Dorfman Vice Chairman and Director HE Vice Chairman and Director
Charles T. Fisher, III Director GM Director; Retired Chairman
General Motors Corp. and President, NBD Bankcorp, Inc.
100 Renaissance Center
Detroit, MI 48243
J. Michael Losh Director GM Executive Vice President and
General Motors Corp. Chief Financial Officer
100 Renaissance Center
Detroit, MI 48243
Charles H. Noski President and Director President of HE
Harry J. Pearce Director GM Vice Chairman and Director
General Motors Corp.
100 Renaissance Center
Detroit, MI 48243
Eckhard Pfeiffer Director President and Chief Executive
Compaq Computer Corp. Officer, Compaq Computer Corp.;
20555 S.H. 249 GM Director
Houston, TX 77070
Jack A. Shaw Senior Vice President HE Senior Vice President;
Hughes Network Systems Chairman and CEO of Hughes
11717 Exploration Lane Network Systems, a unit of HE
Germantown, MD 20876
</TABLE>
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Page 21
<TABLE>
<CAPTION>
Name and Address Position with HE Principal Occupation or
Employment
<S> <C> <C>
Michael T. Smith Chairman of the Board, Chief Chairman of the Board, Chief
Executive Officer and Director Executive Officer and Director
of HE
John F. Smith, Jr. Director Chairman, Chief Executive
General Motors Corp. Officer, President and Director
100 Renaissance Center of GM
Detroit, MI 48243
Marcy J.K. Tiffany Senior Vice President and General HE Senior Vice President and
Counsel General Counsel
Thomas H. Wyman Director GM Director; Former Chairman,
The Landings President and Chief Executive
1 Adams Point Officer of CBS, Inc.; Former
Savannah, GA 31411 Senior Advisor, SBC Warburg
Inc.; Former Chairman, S. G.
Warburg & Co.
</TABLE>
<PAGE> 22
Page 22
SCHEDULE II
GENERAL MOTORS CORPORATION
EXECUTIVE OFFICERS AND DIRECTORS
Unless otherwise specified, the business address of each
person listed below is 100 Renaissance Center, Detroit, Michigan 48243.
<TABLE>
<CAPTION>
Name and Address Position with HE Principal Occupation or
Employment
<S> <C> <C>
Anne L. Armstrong Director Chairman of the Board of
P.O. Box 1358 Trustees, Center for Strategic
Kingsville, Texas 78364 and International Studies
Percy Barnevik Director Chairman, ABB Asea Brown Boveri,
ABB Asea Brown Boveri Ltd. Ltd.
Afsolternstrasse 44
Box 8131
CH-8050 Zurich
Switzerland
J. T. Battenberg III Executive Vice President and GM Executive Vice President and
General Motors Corp. President of Delphi Automotive President of Delphi Automotive
5725 Delphi Drive Systems Systems
Troy, MI 48098-2815
John H. Bryan Director Chairman and Chief Executive
Sara Lee Corporation Officer, Sara Lee Corporation
Three First National Plaza
46th Floor
Chicago, IL 60602
Thomas E. Everhart Director Pro-Vice-Chancellor, University
University of Cambridge of Cambridge
The Old Schools
Trinity Lane
Cambridge CB2-1TN England
Charles T. Fisher, III Director Retired Chairman and President,
NBD Bankcorp, Inc.
</TABLE>
<PAGE> 23
Page 23
<TABLE>
<CAPTION>
Name and Address Position with HE Principal Occupation or
Employment
<S> <C> <C>
George M.C. Fisher Director Chairman and Chief Executive
Eastman Kodak Company Officer, Eastman Kodak Company
343 State Street
Rochester, NY 14650
Thomas A. Gottschalk Senior Vice President and GM Senior Vice President and
General Motors Corp. General Counsel General Counsel
3031 W. Grand Boulevard
Detroit, MI 48202
Louis R. Hughes Executive Vice President and GM Executive Vice President and
General Motors International Operations President of International President of International
Postfach Operations Operations
CH-8152 Glattbrugg
Switzerland
Richard G. LeFauve Senior Vice President and GM Senior Vice President and
President of General Motors President of General Motors
University University
J. Michael Losh Executive Vice President and GM Executive Vice President and
Chief Financial Officer Chief Financial Officer
Karen Katen Director Executive Vice President, Pfizer
Pfizer Pharmaceuticals Group Pharmaceuticals; President, US
Pfizer, Inc. Pharmaceuticals
235 East 42nd Street
New York, NY 10017-5755
J. Willard Marriott, Jr. Director Chairman and Chief Executive
Marriott International Inc. Officer, Marriott International
One Marriott Drive Inc.
Washington, DC 20058
Ann D. McLaughlin Director Chairman, The Aspen Institute;
The Aspen Institute President, Federal City Council
1333 New Hampshire Ave. NW
Suite 1070
Washington, DC 20036
Harry J. Pearce Vice Chairman and Director GM Vice Chairman and Director
Eckhard Pfeiffer Director President and Chief Executive
Compaq Computer Corp. Officer, Compaq Computer
20555 S.H. 249 Corporation
Houston, TX 77070
</TABLE>
<PAGE> 24
Page 24
<TABLE>
<CAPTION>
Name and Address Position with HE Principal Occupation or
Employment
<S> <C> <C>
John G. Smale Director Chairman, GM Executive Committee;
The Proctor & Gamble Company Retired Chairman, The Proctor &
P.O. Box 599 Gamble Company
Cincinnati, Ohio 45201
John F. Smith, Jr. Chairman of the Board, Chief Chairman of the Board, Chief
Executive Officer, President and Executive Officer, President and
Director Director of GM
Louis W. Sullivan, M.D. Director President, Morehouse School of
Morehouse School of Medicine Medicine
720 Westview Drive S.W.
Atlanta, GA 30310
G. Richard Wagoner Executive Vice President and GM Executive Vice President and
President of North American President of North American
Operations Operations
Dennis Weatherstone Director Retired Chairman and current
J.P. Morgan & Co. Inc. director, J.P. Morgan & Co., Inc.
60 Wall Street, 21st Fl.
New York, NY 10260
Thomas H. Wyman Director Former Chairman, President and
The Landings Chief Executive Officer of CBS,
1 Adams Point Inc.; Former Senior Advisor, SBC
Savannah, GA 31411 Warburg Inc.; Former Chairman, S.
G. Warburg & Co.
</TABLE>
<PAGE> 1
SECOND AMENDMENT
TO
STOCK PURCHASE AGREEMENT
This Second Amendment to Stock Purchase Agreement, dated and effective as of May
4, 1998 ("Second Amendment"), is made and entered into by and between Hughes
Electronics Corporation, a Delaware corporation ("Hughes") for itself and as
assignee of Hughes Aircraft Company, a Delaware corporation ("HAC"), and
Whittaker Corporation, a Delaware corporation ("Whittaker"), with reference to
the following facts:
A. HAC and Whittaker entered into a Stock Purchase Agreement dated March 23,
1995 (the "Stock Purchase Agreement"), as amended April 24, 1995 (the
"First Amendment," collectively with the Stock Purchase Agreement, the
"Agreement"), by which Whittaker purchased from HAC all of the outstanding
capital stock of Hughes LAN Systems, Inc., a California corporation (now
known as Whittaker Communications, Inc. ("WCI")).
B. As partial consideration for the purchase of WCI, Whittaker agreed to (i)
deliver the Note (as defined in the Stock Purchase Agreement), and (ii)
make Contingent Payments (as defined in the Stock Purchase Agreement) to
HAC. By the First Amendment, (x) HAC, among other things, assigned all of
its right, title and interest in the Note and the Contingent Payments to
its sole stockholder, Hughes; (y) Whittaker agreed to such assignment and
to issue the Note to Hughes and further agreed that all references to HAC
in Exhibit 1.3(c) and Section 4.4 of the Stock Purchase Agreement shall
refer to Hughes; and (z) Hughes accepted and affirmed the representations
of HAC in Section 3.23 of the Stock Purchase Agreement.
C. Upon the closing of the sale by HAC on April 24, 1995, Whittaker and
Hughes entered into the Registration Agreement, Whittaker issued the Note
to Hughes and all references to "HAC" in Exhibit 1.3(c) and Section 4.4 of
the Agreement were amended to mean "Hughes".
D. Under the terms of its Amended and Restated Credit Agreement, dated as of
April 10, 1996 and as amended to date, among Whittaker, NationsBank of
Texas, N.A., as agent and lender, and the financial institutions party
thereto, Whittaker has been restricted from paying to Hughes the
Contingent Payments that have accrued since April 28, 1996. As of the date
of this Agreement, the aggregate amount of Contingent Payments, plus
interest thereon, which are accrued and unpaid, as mutually agreed by the
parties, is $1,432,565 (the "Unpaid Contingent Payment").
E. Whittaker has asserted various claims against HAC for, among other things,
(i) an adjustment in the Cash Payment under Section 1.6 of the Agreement
due to an alleged reduction in Working Capital below the Base Amount, and
(ii) various alleged breaches of representations and warranties, general
claims of misrepresentation or other claims for indemnification under
Article XII of the Agreement or otherwise under applicable law (all such
claims which have been asserted by Whittaker, or which could have been
1
<PAGE> 2
asserted by Whittaker, at or prior to the Effective Date are referred to
herein as the "Outstanding Whittaker Claims").
F. Each of Hughes and HAC has contested the validity of the Outstanding
Whittaker Claims and each has denied any liability or obligation to
Whittaker with respect to any such Outstanding Whittaker Claims.
G. Hughes has claimed that, by virtue of certain transactions effected by
Whittaker, the amounts specified in Section 2.2 of Exhibit 1.3 (c) to the
Agreement (the "Mandatory Payment"), plus interest thereon, is owing to
Hughes (the "Outstanding Hughes Claims").
H. Whittaker has contested the validity of the Outstanding Hughes Claims and
has denied any liability or obligation to Hughes with respect to such
Outstanding Hughes Claims.
I. Each of Hughes and Whittaker now seeks to modify and amend the Agreement
and the Note and to release each other from all claims, whether known or
unknown, arising from or in connection with the Agreement and the sale of
WCI by HAC, except as otherwise provided in this Second Amendment.
NOW THEREFORE, in consideration of the mutual promises contained herein, the
parties agree as follows:
1. Definitions.
"Effective Date" shall mean the date of this Second Amendment.
"Whittaker Common Stock" shall mean the common stock, $.01 par value, of
Whittaker.
Except as otherwise expressly defined herein, all capitalized terms used
in this Second Amendment shall have the same meaning as defined in the
Agreement.
2. Representations and Warranties
2.1 Representations of Hughes
Hughes represents and warrants to Whittaker as follows:
(a) This Second Amendment and the agreements executed in
connection herewith, and the transactions contemplated
hereby and thereby, have been duly authorized by the
Executive Committee of Hughes, and this Second Amendment and
such related agreements are valid and binding obligations of
Hughes, enforceable against Hughes in accordance with the
terms hereof and thereof, except as may be limited by
bankruptcy, insolvency, moratorium or other laws affecting
creditors' rights generally and subject to general
principles of equity.
2
<PAGE> 3
(b) Under the Master Separation Agreement dated as of December
16, 1997 by and among General Motors Corporation ("GM"), HE
Holdings, Inc., formerly named "Hughes Aircraft Company"
("HAC"), Delco Electronics Corporation and Hughes
Electronics Corporation, a Delaware corporation formerly
named Hughes Network Systems, Inc., and the related
Assignment, Capital Contribution and Assumption Agreement
between HAC and Hughes dated as of December 16, 1997, or
otherwise in connection with the transactions referred to
in such agreement, Hughes has been assigned, and has
assumed, all rights and obligations of the entity formerly
named "Hughes Electronics Corporation" and of the entity
formerly named "Hughes Aircraft Company" under the
Agreement, the Note and the Registration Agreement,
including any rights or obligations released by this Second
Amendment. Without limiting the generality of the
foregoing, Hughes is the sole owner of the Outstanding
Hughes Claims and has not assigned or otherwise transferred
any of such Outstanding Hughes Claims. Hughes has the legal
right to execute this Second Amendment, as successor to, or
assignee of, the entities formerly known as "Hughes
Electronics Corporation" or "Hughes Aircraft Company."
(c) If the Shares are issued to Hughes in accordance with
Section 3(a) of this Second Amendment, Hughes will acquire
such Shares for its own account for investment, not as a
nominee or agent, and not with a view to the resale or
distribution of such Shares or any part thereof or
participation therein except pursuant to the Registration
Statement provided for in Section 3(b).
2.2 Representations of Whittaker
Whittaker represents and warrants to Hughes as follows:
(a) This Second Amendment and the agreements executed in
connection herewith, and the transactions contemplated
hereby and thereby, have been duly authorized by the Board
of Directors of Whittaker, and this Second Amendment and
such related agreements are valid and binding obligations of
Whittaker, enforceable against Whittaker in accordance with
the terms hereof and thereof, except as may be limited by
bankruptcy, insolvency, moratorium or other laws affecting
creditors' rights generally and subject to general
principles of equity.
(b) Whittaker is the sole owner of the Outstanding Whittaker
Claims and has not assigned or otherwise transferred any of
such Outstanding Whittaker Claims.
(c) The Note, as amended by Allonge No.1 thereto ("Amended
Note"), is duly authorized and validly issued and the
requisite number of shares of
3
<PAGE> 4
Whittaker Common Stock have been reserved for issuance upon
conversion of the Amended Note, and upon conversion of all
or part of the Amended Note into Whittaker Common Stock in
accordance with the Amended Note, or upon issuance of the
Warrants in accordance with the Amended Note, if such
conversion or issuance occurs, the shares of Whittaker
Common Stock, or Warrants therefor, as applicable, issued to
Hughes will be duly authorized, validly issued, fully paid
and nonassessable and will be free of preemptive or other
rights.
(d) If the Shares are issued pursuant to Section 3(a) of this
Second Amendment, they will be duly authorized, validly
issued, fully paid and nonassessable and will be free of
preemptive or other similar rights.
2.3 Indemnification. The representations and warranties in this
Section 2 shall be considered representations or warranties of
the parties under the Agreement, for purposes of Article XII
of the Agreement.
3. Contingent Payment.
(a) Upon execution and delivery of this Second Amendment, the Unpaid
Contingent Payment shall be paid to Hughes by Whittaker at
Whittaker's option (i) in cash equal to the Unpaid Contingent
Payment or (ii) as described in the following sentence, in shares of
Whittaker Common Stock with a value equal to 111.11 % of the dollar
amount of the Unpaid Contingent Payment. If Whittaker elects to pay
the Unpaid Contingent Payment in shares, the number of shares of
Whittaker Common Stock which shall be issued to Hughes shall be
equal to 111.11% of the dollar amount of the Unpaid Contingent
Payment divided by $14.76 (such shares, if issued, are referred to
herein as the "Shares").
(b) If Whittaker elects to pay the Unpaid Contingent Payment in Shares,
Whittaker will (i) deliver to Hughes within 15 business days of the
Effective Date, a certificate for the Shares and (ii) prepare and
file with the SEC, within 30 days after the Effective Date, a
registration statement on Form S-3 covering all the Shares issued to
Hughes (the "Registration Statement"). The Shares shall be
considered "Registrable Securities" for purposes of the Registration
Agreement and the Registration Statement shall be considered a
"Demand Registration" under the Registration Agreement; provided,
however, that Hughes shall continue to be entitled to deliver one
additional Demand Notice (as defined in the Registration Agreement)
with respect to any other Registrable Securities (in additional to
the Shares) which it may hereafter acquire. The parties also agree
that any shares of Whittaker Common Stock or other security which
may be issued upon exercise of the Warrants (if issued pursuant to
the Note) shall be considered "Registrable Securities" under the
Registration Agreement.
(c) From and after the Effective Date, no further Contingent Payments,
Mandatory Payments, or any other amounts otherwise required to be
paid under Exhibit 1.3(c) of the Agreement shall be payable by
Whittaker, and Exhibit 1.3(c) to the Agreement shall be void and of
no further effect.
4
<PAGE> 5
4. Amendments to Agreement.
(a) From and after the Effective Date, Sections 1.3, 8.9 and 12.8 of the
Agreement shall be deleted and shall be void and of no further
effect.
(b) Whittaker acknowledges and consents to the transactions referred to
in Section 2.1 (b) of this Second Amendment. All references to
Hughes in the Agreement or any Related Document shall mean Hughes
Electronics Corporation, the party to this Second Amendment.
(c) Sections 12.1(a) and (b) of the Agreement are amended to read as
follows:
"(a) any third party claim which arises out of or relates to any
inaccuracy or misrepresentation in or breach of any
representation or warranty of Hughes in the Second Amendment
or in Sections 3.2, 3.4, 3.6, 3.7 (b), (c), (d) or (e), the
first sentence of Section 3.8(a) or Sections 3.12(b), 3.16 or
3.23 of the Agreement.
(b) the breach or failure by Hughes to perform after the Effective
Date any of its covenants or agreements under the Agreement,
as amended, or any of the Related Documents;"
(d) Sections 12.2(a) and (b) of the Agreement are amended to read as
follows:
"(a) any third party claim which arises out of or relates to any
inaccuracy or misrepresentation in or breach of any
representation or warranty of Whittaker in the Agreement, as
amended;
(b) the breach or failure by Whittaker to perform after the
Effective Date any of its covenants or agreements under the
Agreement, as amended, or any of the Related Documents;"
(e) Section 13.2 of the Agreement is amended to provide that the
respective addresses for notices under the Agreement shall be as
follows:
If to Hughes: Hughes Electronics Corporation
200 N. Sepulveda
Bldg. 001, MS A126
El Segundo, CA 90245
Attention: P. T. Doyle,
Vice President - Corporate Development
Fax No. (310) 640-0433
5
<PAGE> 6
If to Whittaker: Whittaker Corporation
1995 N. Surveyor Avenue
Simi Valley, CA 93063
Attention: J. K. Otto, Vice President
CFO & Treasurer
Fax No. (805) 584-4148
5. Amendment to Note. From and after the Effective Date, the Note shall be
amended as set forth in the Allonge No. 1 attached hereto as Exhibit 1 and
incorporated herein by this reference.
6. Mutual Release.
(a) Hughes and its successors and assigns, hereby release (on behalf of
itself, HE, GM and HAC), acquit and forever discharge Whittaker and
its successors, assigns, affiliates, subsidiaries, stockholders,
directors, officers, employees, attorneys, consultants,
representatives and agents from any and all manner of actions or
causes of action (in law or in equity), debts, liens, contracts,
agreements, promises, liabilities, obligations, claims (including
without limitation, the Outstanding Hughes Claims), rights, demands,
damages, losses, costs or expenses of any nature whatsoever, known
or unknown, fixed or contingent, which they now have or may
hereafter have against Whittaker and its successors, assigns,
affiliates, subsidiaries, stockholders, directors, officers,
employees, attorneys, consultants, representatives, and agents by
reason of any matter, event, action, cause, or thing arising out of,
based upon or relating in any way to the Agreement or the
transactions contemplated therein which arose or have arisen prior
to the Effective Date; provided, however that the foregoing release
shall not apply to (i) this Second Amendment; or (ii) the Note, as
amended hereby, or (iii) the Registration Agreement; or (iv) claims
for indemnification pursuant to Article XII of the Agreement, as
amended by this Second Amendment, that are based on third party
claims against Hughes that are unknown to Hughes as of the Effective
Date.
(b) Whittaker and its successors and assigns, hereby release, acquit and
forever discharge Hughes (including for these purposes, HAC, GM and
HE), and its successors, assigns, affiliates, subsidiaries,
stockholders, directors, officers, employees, attorneys,
consultants, representatives, and agents from any and all manner of
action or causes of action (in law or equity), debts, liens,
contracts, agreements, promises, liabilities, obligations, claims
(including, without limitation, the Outstanding Whittaker Claims),
rights, demands, damages, losses, costs or expenses of any nature
whatsoever, known or unknown, fixed or contingent, which it now has
or may hereafter have against Hughes and its successors, assigns,
affiliates, subsidiaries, stockholders, directors, officers,
employees, attorneys, consultants, representatives and agents by
reason of any matter, event,
6
<PAGE> 7
action, cause or thing arising out of, based upon or relating to the
Agreement or the transactions contemplated therein which arose or
have arisen prior to the Effective Date; provided, however, that the
foregoing release shall not apply to (i) this Second Amendment, or
(ii) the Note, as amended hereby, or (iii) the Registration
Agreement, or (iv) claims for indemnification pursuant to Article
XII of the Agreement, as amended by this Second Amendment, that are
based on third party claims against Whittaker that are unknown to
Whittaker as of the Effective Date.
(c) It is hereby expressly understood that Section 1542 of the
California Civil Code ("Section 1542") provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Hughes, on one hand, and Whittaker, on the other hand, expressly waive and
relinquish to the full extent that they may lawfully do so, all rights and
benefits they have or may have under Section 1542 and/or the provisions of all
comparable, equivalent or similar statutes and principles of common law of
California. The parties to this Second Amendment further acknowledge and agree
that this waiver is an essential and material term of this Second Amendment. In
connection with said waiver and relinquishment regarding Civil Code Section
1542, Hughes, on one hand, and Whittaker, on the other hand, acknowledge that
they are aware that they or their attorneys may hereafter discover facts
different from or in addition to the facts of which they or their attorneys now
are aware with respect to the subject matter of this Second Amendment. Hughes,
on one hand, and Whittaker, on the other hand, and each of them acknowledge that
they have been advised by an attorney at law as to the meaning and effect of,
and understand, Section 1542.
(d) (i) Hughes hereby agrees and covenants, and to the extent allowable
under law agrees and covenants on behalf of its successors,
assigns, affiliates and agents, not to commence, prosecute or
aid in any way any action or other proceeding (whether legal,
equitable or administrative) against Whittaker and/or its
successors, assigns, affiliates, subsidiaries, stockholders,
directors, officers, employees, attorneys, consultants,
representatives and agents, based upon or relating in any way
to the Agreement, which is the subject of the release by
Hughes contained herein, either affirmatively or by way of
cross-complaint, defense or counterclaim.
(ii) Whittaker hereby agrees and covenants, and to the extent
allowable under law agrees and covenants on behalf of its
successors, assigns, affiliates and agents, not to commence,
prosecute or aid in any way any action or other proceeding
(whether legal, equitable or administrative) against Hughes
and/or its successors, assigns, affiliates, subsidiaries,
stockholders, directors, officers, employees, attorneys,
consultants, representatives and agents, based upon or
relating in any way to the Agreement, which is the subject of
the release by
7
<PAGE> 8
Whittaker contained herein, either affirmatively or by way of
cross-complaint, defense, or counterclaim.
(e) The parties hereto have entered into this Second Amendment for the
purpose of obtaining the complete and final settlement of the disputes
between them and to avoid the burden, inconvenience and expense of
litigation. Nothing in this Second Amendment shall be construed to
constitute an admission of liability of any kind whatsoever by any
party, or of any unlawful or actionable conduct. Nothing in this
Second Amendment shall be construed to constitute an adjudication of
the merits of any claim or any issue of fact or law between the
parties hereto.
7. Effect of Second Amendment. Except as expressly amended hereby, the
Agreement, the Note and the Registration Agreement are each ratified and
confirmed and shall remain in effect in accordance with their respective
terms. All references in the Agreement or any Related Document to the
Agreement shall mean the Agreement as amended by this Second Amendment.
IN WITNESS WHEREOF, this Second Amendment to Stock Purchase Agreement has been
duly executed by the duly authorized officers of Whittaker and Hughes as of the
date first written above.
WHITTAKER CORPORATION,
a Delaware corporation
By:
Its:
HUGHES ELECTRONICS CORPORATION,
a Delaware corporation
By:
Its:
8
<PAGE> 1
ALLONGE NO. 1
LOS ANGELES, CALIFORNIA
MAY 4, 1998
RECITALS
WHEREAS, the undersigned, Whittaker Corporation, a Delaware corporation
(the "Company"), issued that certain 7% Convertible Subordinated Note due May 1,
2005, dated April 24, 1995 (the "Note"), in favor of Hughes Electronics
Corporation, a Delaware corporation ("Hughes");
ALLONGE
NOW THEREFORE, the Company hereby agrees with Hughes that, effective as
of the date of this Allonge No. I (the "Effective Date"):
1. A new Section 3. 1 (f) is hereby added to the Note as follows:
If the Company redeems this Note in whole or in part prior to May 4,
2002, the Company shall issue to Hughes warrants to purchase the number
of shares of Common Stock of the Company which would have been issued
by the Company if Hughes had elected to convert the principal amount of
the Note subject to such redemption at the conversion price, as defined
in Section 4. 1. The exercise price of the warrants shall be equal to
the conversion price, as defined in Section 4. 1, and such warrants
shall expire on May 4, 2002. The form of such warrant is attached
hereto as Exhibit A.
2. Section 4.1 of the Note is hereby amended in its entirety as follows:
4.1 Conversion. The Holder of this Note shall have the right, at his
option, at any time up to and including April 25, 2005 (except that,
with respect to any Note or portion of a Note which shall be called for
redemption pursuant to Section 3.1 or repurchase pursuant to Section
3.2, such right shall terminate, except as provided in Section 3.3, at
the close of business on the fifth Business Day prior to the Redemption
Date fixed for such Note or portion of a Note), to convert, subject to
the terms and provisions of this Section 4, all or any part (but not
less than $1,000,000 or the unpaid principal balance of this Note,
whichever is less) of the principal of this Note into shares of Common
Stock of the Company at $16.97 per share; or, in case an adjustment of
such price has taken place pursuant to the provisions of Section 4.3,
then at the price as last adjusted (such price or adjusted price being
referred to herein as the "conversion price"), upon surrender of the
Note, the principal of which is so to be converted, accompanied
<PAGE> 2
by a conversion notice in the form provided (or separate written notice
reasonably satisfactory to the Company) (hereinafter referred to as the
"conversion notice") duly executed, to the Company at any time during
usual business hours and, if so required by the Company, accompanied by
a written instrument or instruments of transfer in form satisfactory to
the Company duly executed by the Holder or his attorney duly authorized
in writing. For convenience, the conversion of all or any portion of
the principal of any Note into the Common Stock is hereinafter
sometimes referred to as the "conversion" of such Note.
3. Section 4.4 of the Note is hereby amended in its entirety as follows:
4.4 Fractional Shares and Fractional Warrants. No fractional shares or
fractional warrants or scrip representing fractional shares or
fractional warrants shall be issued upon the conversion of any Note or
the issuance of any warrants pursuant to Section 3.1(f) hereof. If the
conversion of any Note or the issuance of any warrants pursuant to
Section 3. 1 (f) hereof results in a fraction, the Holder shall be paid
an amount equal to such fraction multiplied by the Current Market Price
(determined as provided in Section 4.3(d)).
4. Except as otherwise expressly defined herein, all capitalized terms
used in this Allonge No. I shall have the same meaning as defined in
the Note.
The Company hereby authorizes Hughes to attach this Allonge No. I to the front
of the Note.
WHITTAKER CORPORATION
By:
Name:
Title:
<PAGE> 3
EXHIBIT A
[DATE OF ISSUANCE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 NOR UNDER APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH LAWS
OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE
WARRANT TO PURCHASE
COMMON STOCK
OF
WHITTAKER CORPORATION
VOID AFTER MAY 4, 2002
THIS CERTIFIES that, for value received, Hughes Electronics
Corporation ("Warrant Holder"), is entitled, subject to the terms of Section I
hereof, to subscribe for and purchase from Whittaker Corporation, a Delaware
corporation (the "Company"), at the price of [the conversion price of the 7%
Convertible Subordinated Note due May 1, 2005, dated April 24, 1995, as adjusted
by Allonge No. I thereto in effect on the date of issuance of the Warrant] per
share, or in case an adjustment of such price has taken place pursuant to the
provisions of Section 2 hereof, then at the price as last adjusted (such price
or adjusted price, hereinafter called the "Warrant Price"), up to [the principal
amount of the 7% Convertible Subordinated Note due May 1, 2005, dated April 24,
1995, as adjusted by Allonge No. I thereto, being redeemed, divided by the
Warrant Price in effect on the date of issuance of the Warrant] fully paid,
nonassessable shares of Common Stock, $.01 par value, of the Company ("Common
Stock"), or in case an adjustment in the number of shares of Common Stock has
taken place pursuant to Section 2 hereof, then such adjusted number of shares of
Common Stock, subject, however, to the provisions and upon the terms and
conditions hereinafter set forth, including, without limitation, the provisions
of Section 3 hereof.
1. Exercise of Warrant.
(a) This Warrant shall be exercisable at any time or from time
to time after the date of issuance on or prior to May 4, 2002. This Warrant may
be exercised by the Warrant Holder hereof, in whole or in part (but not for less
than the number of shares of Common Stock determined by dividing $1,000,000 by
the Warrant Price, or the total number of shares of Common Stock subject to the
Warrant, whichever is less), by the completion of the subscription form attached
hereto and by the surrender of this Warrant (properly endorsed) at the principal
executive offices of the Company (or at such other agency or office of the
Company in the United States as it may designate by
<PAGE> 4
notice in writing to the Warrant Holder at the address of the Warrant Holder
appearing on the books of the Company), and by payment to the Company of the
Warrant Price, in cash, by wire transfer in immediately available funds, or by
certified or official bank check, for each share of Common Stock being
purchased.
(b) As promptly as practicable after the exercise of rights
represented by the Warrant, the Company shall deliver or cause to be delivered
to the Warrant Holder certificates representing the number of fully paid and
nonassessable shares of Common Stock so purchased. Such exercise shall be deemed
to have been made at the close of business on the date that the Warrant shall
have been exercised with the subscription form duly executed, so that the rights
of the Warrant Holder as such holder shall cease at such time and, subject to
the following provisions of this paragraph, the Warrant Holder shall be treated
for all purposes as having become the record holder of such shares of Common
Stock at such time, and such exercise shall be at the Warrant Price in effect at
such time; provided, however, that no such exercise on any date when the stock
transfer books of the Company shall be closed shall be effective to constitute
the Warrant Holder as the record holder of such shares of Common Stock on such
date, but such exercise shall be effective to constitute the Warrant Holder as
the record holder thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; such exercise shall
be at the Warrant Price in effect on the date that such Warrant shall have been
exercised, as if the stock transfer books of the Company had not been closed.
(c) If the Warrant shall be exercised in part, then the
Company shall, upon surrender of the Warrant to the Company, issue a new Warrant
entitling the Warrant Holder to subscribe for and purchase, on the terms hereof,
the number of shares of Common Stock equal to the difference between (i) the
number of shares of Common Stock subject to subscription and purchase pursuant
to the Warrant being surrendered and (ii) the number of shares of Common Stock
being purchased pursuant to such partial exercise.
(d) If the last day for the exercise of the Warrant shall not
be a Business Day, then the Warrant may be exercised on the next succeeding
Business Day.
2. Antidilution Provisions.
The Warrant Price and the number of shares of Common Stock issuable
upon exercise of the Warrant shall be subject to adjustment from time to time as
follows:
(a) If the Company shall (i) pay a dividend or make a
distribution on the outstanding shares of its Common Stock in shares of its
Common Stock, (ii) subdivide or reclassify the outstanding shares of its Common
Stock into a greater number of shares, or (iii) combine or reclassify the
outstanding shares of its Common Stock into a smaller number of shares, (x) the
number of shares of Common Stock issuable upon exercise of the Warrant at the
time of the record date for such dividend
<PAGE> 5
or distribution or the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the Warrant Holder
upon exercise of the Warrant after such time shall be entitled to receive the
number of shares of Common Stock which the Warrant Holder would have owned or
been entitled to receive had the Warrant been exercised immediately prior to
such time and (y) the Warrant Price in effect at the time of the record date for
such dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be adjusted immediately thereafter so that
it shall equal the price determined by multiplying the Warrant Price in effect
immediately prior thereto by a fraction of which the numerator shall be the
number of shares of Common Stock issuable upon exercise of the Warrant
immediately prior to the adjustment in the preceding clause (x) and of which the
denominator shall be the number of shares of Common Stock issuable upon exercise
of the Wart-ant immediately after the adjustment in the preceding clause (x).
Any shares of Common Stock issuable in payment of a dividend shall be deemed to
have been issued immediately prior to the time of the record date for such
dividend for purposes of calculating the number of outstanding shares of Common
Stock under subsections (b) and (c) below. Such adjustment shall be made
successively whenever any event specified above shall occur.
(b) If the Company shall fix a record date for the issuance of
rights or warrants (other than this Warrant or replacements thereof) to all
holders of its Common Stock entitling them to subscribe for or purchase shares
of its Common Stock (or securities convertible into shares of its Common Stock)
at a price per share (or having a conversion price per share) less than the
Current Market Price (as defined in subsection (d) below) of a share of Common
Stock on such record date, (i) the Warrant Price shall be adjusted immediately
thereafter so that it shall equal the price determined by multiplying the
Warrant Price in effect immediately prior thereto by a fraction ("Fraction B"),
of which the numerator shall be the number of shares of Common Stock outstanding
on such record date plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of such Common Stock so
offered for subscription or purchase would purchase at the Current Market Price
per share (determined by multiplying such total number of shares by the exercise
price of such rights or warrants (or by the applicable conversion price in the
case of convertible securities) and dividing the product so obtained by such
Current Market Price), and of which the denominator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
additional shares of Common Stock offered for subscription or purchase (or into
which the convertible securities so offered are initially convertible); and (ii)
the number of shares of Common Stock issuable upon exercise of the Warrant shall
be adjusted immediately thereafter so that such number shall equal the number of
shares of Common Stock issuable upon exercise of the Warrant immediately prior
thereto multiplied by the reciprocal of Fraction B. Shares of Common Stock owned
by or held for the account of Company or its Subsidiaries shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed. In the event that such
rights or warrants are not so issued, the Warrant Price then in effect shall be
readjusted
<PAGE> 6
to the Warrant Price which would then be in effect if such record date had not
been fixed.
(c) If the Company shall fix a record date for the making of a
distribution to all holders of shares of its Common Stock (i) of shares of any
class of its Capital Stock other than its Common Stock or (ii) of evidences of
its indebtedness or (iii) of other assets (excluding non-extraordinary cash
dividends or distributions, and dividends or distributions referred to in
subsection (a) above) or (iv) of rights or warrants to subscribe for or purchase
its securities (excluding those referred to in subsection (b) above and other
than this Warrant or replacements thereof), then in each such case (x) the
Warrant Price shall be adjusted immediately thereafter so that it shall equal
the price determined by multiplying the Warrant Price in effect immediately
prior thereto by a fraction ("Fraction C"), of which the numerator shall be the
total number of shares of Common Stock outstanding multiplied by the Current
Market Price per share on such record date, less the fair market value (as
determined by the Board of Directors of the Company in good faith, and described
in a resolution of the Board of Directors of the Company) of said shares or
evidences of indebtedness or assets or rights or warrants so distributed, and of
which the denominator shall be the total number of shares of Common Stock
outstanding multiplied by such Current Market Price per share; and (y) the
number of shares of Common Stock issuable upon exercise of the Warrant shall be
adjusted immediately thereafter so that such number shall equal the number of
shares of Common Stock issuable upon exercise of the Warrant immediately prior
thereto multiplied by the reciprocal of Fraction C. Such adjustment shall be
made successively whenever such a record date is fixed. In the event that such
distribution is not so made, the Warrant Price then in effect shall be
readjusted to the Warrant Price which would then be in effect if such record
date had not been fixed.
(d) For the purpose of any computation under subsections (b)
and (c) above, the Current Market Price per share on any date shall be deemed to
be the aver-age of the daily closing prices for the 10 consecutive trading days
immediately preceding such date. The closing price for each day shall be the
last reported sales price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange, or, if the Common
Stock is not listed or admitted to trading on such Exchange, on the principal
national securities exchange or national automated quotation system on which the
Common Stock is listed or admitted to trading or quoted or, if not so listed or
admitted to trading or quoted, the average of the closing bid and asked prices
in the over-the-counter market as furnished by any New York Stock Exchange firm
selected from time to time by the Company for that purpose and reasonably
satisfactory to the Warrant Holder. For purposes of this subsection (d), the
term "trading day" shall not include any day on which securities are not traded
on such exchange or in such market.
(e) In any case in which this Section 2 shall require that an
adjustment shall become effective immediately after a record date or an
effective date for an event, the Company may defer until the occurrence of such
event issuing to the Warrant
<PAGE> 7
Holder upon exercise of the Warrant after such record date or effective date and
before the occurrence of such event the shares issuable upon such exercise. If
such adjustment results in a reduction of the Warrant Price, the Company shall
return to the Warrant Holder the difference between the amount previously
received by the Company from the Warrant Holder in connection with such exercise
and such lesser amount due as a result of such reduction in the Warrant Price.
If such adjustment results in an increase in the Warrant Price, the Warrant
Holder shall deliver to the Company the difference between such greater amount
due in connection with such exercise as a result of such increase in the Warrant
Price and the amount previously received by the Company in connection with such
exercise.
(f) No adjustment in the Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustment which by reason of this
subsection (f) is not required to be made shall be carried forward and taken
into account in any subsequent adjustment.
(g) Whenever the Warrant Price and number of shares of Common
Stock issuable upon exercise of the Warrant are adjusted as provided in this
Section 2, the Company shall promptly provide the Warrant Holder (i) an
Officers' Certificate in the case of an adjustment pursuant to subsection (a) of
this Section 2 or (ii) an Opinion of Counsel in the case of any other
adjustment, in each case setting forth the Wan-ant Price and number of shares of
Common Stock issuable upon exercise of the Warrant after such adjustment and
setting forth a brief statement of the facts requiring such adjustment and the
computation thereof, which Officers' Certificate or Opinion of Counsel, as the
case may be, shall be prima facie evidence of the correctness of any such
adjustment absent manifest error.
(h) All calculations under this Section 2 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
3. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued the exercise of the Warrant.
4. Mergers, Etc.
(a) In case of any consolidation with or merger of the
Company into another corporation (other than a merger or consolidation in which
the Company is the continuing corporation), or in case of any sale, lease or
conveyance to another Person of the property of the Company as an entirety or
substantially as an entirety, such successor, leasing or purchasing corporation,
as the case may be, shall execute a supplemental instrument to this Warrant
providing that the Warrant Holder shall have the right thereafter to exercise
this Warrant for the kind and amount of shares of stock, other securities or
property, including cash, receivable upon such consolidation, merger, sale,
lease or conveyance by a holder of the number of shares of Common Stock for
which
<PAGE> 8
this Warrant might have been exercised immediately prior to such consolidation,
merger, sale, lease or conveyance.
(b) In case of (i) any reclassification or change of the
shares of Common Stock of the Company issuable upon exercise of this Warrant or
(ii) any consolidation with or merger of another corporation into the Company in
which the Company is the continuing corporation and in which there is a
reclassification or change of the shares of Common Stock issuable upon exercise
of this Warrant (in each case, other than a change in par value, or from par
value to no par value, or as a result of a subdivision or combination subject to
Section 2(a), but including any change in the shares of Common Stock into two or
more classes or series of shares), the Company shall execute a supplemental
instrument to this Warrant providing that the Warrant Holder shall have the
right thereafter to exercise this Warrant for the kind and amount of shares of
stock, other securities or property, including cash, receivable upon such
reclassification, change, consolidation or merger by a holder of the number of
shares of Common Stock for which this Warrant might have been exercised
immediately prior to such reclassification, change, consolidation or merger.
(c) Any supplemental instrument entered into pursuant to this
Section 4 shall (i) where appropriate, state the Warrant Price in terms of one
full share of Common Stock or one full share of the Capital Stock of any
successor, leasing or purchasing corporation and (ii) provide for adjustments,
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Warrant. A copy of each such supplemental instrument shall
be promptly provided to each Warrant Holder.
(d) The above provisions of this Section 4 shall similarly
apply to successive reclassifications and changes of shares and to successive
consolidations, mergers, sales or conveyances.
5. Reservation of Shares. The Company covenants that it will at all
times reserve, free from pre-emptive rights, out of its authorized Common Stock,
solely for the purpose of issue upon exercise of the Warrant as herein provided,
such number of shares of Common Stock as shall then be issuable upon the
exercise of the Warrant. The Company covenants that all shares of Common Stock
which shall be so issuable shall be duly and validly issued and fully paid and
nonassessable.
6. Corporate Action.
(a) Before taking any action which would cause an adjustment
reducing the Warrant Price below the then stated or par value of the shares of
Common Stock issuable upon exercise of the Warrants, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
shares of such Common Stock at such adjusted Warrant Price.
<PAGE> 9
(b) The Company covenants that if any shares of Common Stock,
required to be reserved for purposes of exercise of the Warrant hereunder,
require registration with or approval of any governmental authority under any
United States Federal or State Law, or listing upon the New York Stock Exchange
or any other applicable national securities exchange or quotation system, before
such shares may be issued upon exercise, the Company will in good faith and as
expeditiously as possible endeavor to cause such shares to be duly registered,
approved or listed, as the case may be.
7. No Charge. The issuance of certificates for shares of Common
Stock upon the exercise of the Warrant shall be made without charge to the
Warrant Holder for any tax in respect of the issuance of such certificates, and
such certificates shall be issued in the name of the Warrant Holder.
8. Notice. If at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of
its Common Stock in shares of its Common Stock or to fix a record date for the
making of any other distribution (other than a non-extraordinary cash dividend
or distribution) to all holders of shares of its Common Stock; or
(b) to fix a record date for the issuance of rights or
warrants (other than this Warrant or replacements thereof) to all holders of
shares of its Common Stock entitling them to purchase any additional shares of
its Common Stock or any other securities; or
(c) to effect any reclassification, subdivision or combination
of outstanding shares of its Common Stock; or
(d) to effect any liquidation, dissolution or winding-up of
the Company;
then, and in any one or more of such cases, the Company shall cause notice
thereof to be mailed to the Warrant Holder at the Warrant Holder's last address
known to the Company at least 30 days prior to the date on which (i) the books
of the Company shall close, or a record shall be taken, for such dividend,
distribution or issuance of rights or warrants or (ii) such reclassification,
subdivision, combination, liquidation, dissolution or winding-up shall become
effective, as the case may be.
9. No Stockholder Rights or Liabilities. This Warrant shall not
entitle the Warrant Holder to any voting rights or other rights as a stockholder
of the Company. No provision hereof, in the absence of affirmative action by the
Warrant Holder to purchase shares of Common Stock, and no mere enumeration
herein of the rights or privileges of the Warrant Holder, shall give rise to any
liability of the Warrant Holder for the Warrant Price or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
<PAGE> 10
10. No Impairment. The Company will not, by amendment of 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 the
terms to be observed or performed under this Warrant by the Company, but will at
all times in good faith assist in carrying out all of the provisions of this
Warrant in order to protect the rights of the Warrant Holder against impairment
of the exercise rights provided for herein.
11. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant is
lost, stolen, mutilated or destroyed, the Company may, on such terms as to
indemnity or otherwise as it may in its discretion reasonably impose (which
shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed. Any such new Warrant shall constitute an original
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
12. Notices. All notices, requests and other communications required
or permitted to be given or delivered hereunder shall be in writing, and shall
be delivered, or shall be sent by national overnight courier service or by
certified or registered mail, postage prepaid and addressed, if to the Warrant
Holder, to the Warrant Holder at the address shown on the records of the Company
or at such other address as shall have been furnished to the Company by notice
from the Warrant Holder and, if to the Company, addressed to the Company at 1955
North Surveyor Avenue, Simi Valley, California 93063, Attention: President, or
at such other address as shall have been furnished to the Warrant Holder by
notice from the Company.
13. Definitions. Except as otherwise expressly defined herein,
capitalized terms used in this Warrant shall have the same meaning as defined in
that certain 7 % Convertible Subordinated Note, dated April 24, 1995, as
adjusted by Allonge No. I thereto.
<PAGE> 11
IN WITNESS WHEREOF, WHITTAKER CORPORATION, has executed this Warrant
on and as of the day and year first above written.
WHITTAKER CORPORATION
By:
[Title]
[Corporate Seal]
Attest:
Secretary
<PAGE> 12
SUBSCRIPTION FORM TO BE EXECUTED
UPON EXERCISE OF THE WARRANT
Date
To Whittaker Corporation:
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to subscribe for and purchase shares of Common
Stock covered by such Warrant, and herewith tenders $ in payment
of the purchase price for such shares.
HUGHES ELECTRONICS CORPORATION
By:
Address:
