SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________________________
SCHEDULE 13D
(RULE 13D-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 4){1}
AMERIQUEST TECHNOLOGIES, INC.
______________________________________________________________________________
(Name of issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
__________________________________________________________
(Title of class of securities)
03070P 10-3
__________________________________________________________
(CUSIP number)
KLAUS H. JANDER, ESQ.
ROGERS & WELLS
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8001
(Name, address and telephone number of person
authorized to receive notices and communications)
MAY 6, 1997
__________________________________________________________
(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 <square>.
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.
(Continued on following pages)
(Page 1 of 64 Pages)
Exhibit Index Begins at Page 37
__________________________
[FN]
{1} 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 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
[CAPTION]
CUSIP NO. 03070P 10-3 PAGE 2 OF 64 PAGES
<TABLE>
<CAPTION>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Computer 2000 AG
<S> <C> <C> <C> <C>
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) <checked-box>
(B) <square>
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(C) OR 2(E) <square>
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Federal Republic of Germany
7 SOLE VOTING POWER
NUMBER OF 8 SHARED VOTING POWER
SHARES 78,307,920
BENEFICIALLY
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH
PERSON 10 SHARED DISPOSITIVE POWER
WITH 78,307,920
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON <square>
78,307,920
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* <square>
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
APPROXIMATELY 72%
14 TYPE OF REPORTING PERSON*
HC/CO
</TABLE>
*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 2 OF 64 PAGES
PAGE
<PAGE>
SCHEDULE 13D
[CAPTION]
CUSIP NO. 03070P 10-3 PAGE 3 OF 64 PAGES
<TABLE>
<CAPTION>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Computer 2000, Inc.
<S> <C> <C> <C> <C>
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) <checked-box>
(B) <square>
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(C) OR 2(E) <square>
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF 8 SHARED VOTING POWER
SHARES 78,307,920
BENEFICIALLY
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON
WITH
10 SHARED DISPOSITIVE POWER
78,307,920
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON <square>
78,307,920
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* <square>
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
APPROXIMATELY 72%
14 TYPE OF REPORTING PERSON*
HC/CO
</TABLE>
*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
<PAGE>
This Amendment No. 4 ("Amendment No. 4") to the Statement on
Schedule 13D dated November 14, 1994 (the "Schedule 13D") is filed by
Computer 2000 AG and Computer 2000, Inc. in connection with their
beneficial ownership of Common Stock of AmeriQuest Technologies, Inc., a
Delaware corporation (the "Common Stock"). Schedule 13D as previously
amended by Amendment No. 1, dated August 7, 1995, by Amendment No. 2, dated
March 29, 1996, and by Amendment No. 3, dated April 14, 1997, is hereby
amended as set forth below.
Item 2. IDENTITY AND BACKGROUND
Item 2 of Schedule 13D is hereby amended in its entirety to read
as set forth below:
Pursuant to Rules 13d-1(f)(1) and (2) promulgated under the Act,
this Statement on Schedule 13D is filed on behalf of Computer 2000 AG, a
stock company organized under the laws of Germany ("C2000"), and Computer
2000 Inc., a corporation organized under the laws of Delaware ("Sub").
C2000 is a distributor of hardware, software and communications
products for professional personal computers throughout Europe, and also
provides additional services relating thereto, including consultancy and
technical service and support. The address of C2000's principal business
and principal office is Wolfratshauser Strasse 84, 81379 Munich, Germany.
C2000 is a publicly-held company in Germany, and Kloeckner & Co.
AG ("Kloeckner") is the majority shareholder of C2000. In a press release
dated April 28, 1997, Kloeckner announced that as part of a substantial
restructuring and reorganization to be completed over the next twelve
months, control of C2000 will be removed from the Kloeckner group and
transferred to VIAG AG.
Sub is a wholly-owned subsidiary of C2000 whose initial business
is to acquire securities in Issuer and to engage in purchasing and sales
activities for C2000 and its affiliated companies. The address of Sub's
principal office is 6100 Hollywood Boulevard, 7th Floor, Hollywood, Florida
33024.
Kloeckner is a diversified trading and services company which is
represented worldwide in a broad range of activities, including trading
operations in steel, chemical products and textiles. It is also engaged in
various service industries. Kloeckner is organized as a stock corporation
under the laws of Germany.
Bayernwerk AG ("Bayernwerk") owns 100% of the capital stock of
Kloeckner. The principal place of business and executive offices of
Kloeckner are located at Neudorfer Strasse 3-5, 47057 Duisburg, Germany.
Bayernwerk is a utility company supplying electricity to various
regions in Germany. It is organized as a stock corporation under German
law. VIAG AG owns 97.1% of the capital stock of Bayernwerk and the
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remaining 2.9% is owned by various Bavarian municipal agencies. The
principal business and the executive offices of Bayernwerk are located at
Nymphenburgerstrasse 39, 80335 Munich, Germany.
VIAG AG is a publicly-held company whose shares are listed on the
stock exchanges in Germany and Switzerland. VIAG AG is a diversified
industrial holding company whose primary business areas are energy,
chemicals, packaging, trading and transport, and telecommunications in
Germany and around the world. The principal business and the executive
offices of VIAG AG are located at Nymphenburgerstrasse 37, 80335 Munich,
Germany.
The attached Schedule I is a list of the (i) members of the
management boards and the members of the supervisory boards of C2000,
Kloeckner, Bayernwerk and VIAG AG (under the German legal system, members
of the management board have positions that are analogous to executive
officers, and members of the supervisory board have positions analogous to
directors) and (ii) members of the Board of Directors and executive
officers of Sub.
During the last five years, neither C2000, Sub nor, to the best
of each of C2000's and Sub's knowledge, any person named in Schedule I has
been: (a) convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors); or (b) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of
which it was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
U.S. federal or state securities laws or finding any violation with respect
to such laws.
Item 4. PURPOSE OF TRANSACTION
The caption "Proposed Additional Capital Contribution" and the
four paragraphs set forth thereunder in Amendment No. 3 to the Schedule 13D
are hereby amended in their entirety to read as follows:
ADDITIONAL CAPITAL CONTRIBUTION BY C2000
In November 1996, C2000 delivered a capital obligation letter to
the Board of Directors of Issuer confirming C2000's obligation to provide
Issuer with additional financing in the amount of at least $30 million
early in calendar year 1997. At the April 9, 1997 Board Meeting, C2000's
designees on the Board proposed that C2000 fulfill this obligation in full
by causing Sub to make a $30 million investment in Issuer by purchasing
shares of a new series of convertible preferred stock of Issuer. At the
April 9, 1997 Board Meeting the Board approved in principle the issuance
and sale of such convertible preferred stock, subject to the consideration
and acceptance of the Issuer's Board of Directors and the execution of a
mutually acceptable preferred stock purchase agreement.
During a telephonic meeting of the Board of Directors of the
Issuer held on April 23, 1997, by resolution the Directors unanimously
approved a draft preferred stock purchase agreement by and between the
Issuer and Sub.
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On April 28, 1997, the Issuer and Sub entered into a Preferred
Stock Purchase Agreement, dated April 28, 1997 (the "Preferred Stock
Purchase Agreement"), pursuant to which the Issuer agreed to issue and sell
to Sub, and Sub agreed to purchase from the Issuer, 300,000 shares of
Series H Cumulative Convertible Preferred Stock, Par Value $0.01 (the
"Series H Preferred Stock") at a purchase price of $100.00 per share. The
form of the Preferred Stock Purchase Agreement is appended to this
Amendment No. 4 as Exhibit K to Schedule 13D and is hereby incorporated by
reference.
The closing under the Preferred Stock Purchase Agreement occurred
on May 6, 1997, on which date Sub caused the payment of $30 million to be
paid to or for the benefit of the Issuer by wire transfer of immediately
available funds, as provided in the Preferred Stock Purchase Agreement, and
the Issuer issued and sold 300,000 shares of Series H Preferred Stock to
Sub.
Each share of Series H Preferred Stock is convertible into Common
Stock, at the option of the holder thereof, as described in more detail in
the paragraphs set forth below beneath the caption "Conversion Rights." As
of the date of this Amendment No. 4 to the Schedule 13D, Sub has the right
to convert the 300,000 shares of Series H Preferred Stock that it holds
into a total of approximately 41,958,041 shares of Common Stock. If Sub
were to exercise its conversion rights in full as of the date of this
Amendment No. 4, it would increase its aggregate ownership of the Common
Stock to approximately 78,307,920 shares, representing approximately 72% of
the Common Stock that would be issued and outstanding immediately following
such conversion on such date.
Among other things, the Preferred Stock Purchase Agreement
includes the provisions described below:
Article 2 of the Preferred Stock Purchase Agreement sets forth
representations and warranties of the Issuer with respect to organization
and good standing, authorization of the Preferred Stock Purchase Agreement,
authorization and valid issuance of the Preferred Convertible Stock, and
other representations and warranties. Article 3 of the Preferred Stock
Purchase Agreement sets forth representations and warranties of Sub with
respect to organization and good standing, authorization of the Preferred
Stock Purchase Agreement and other representations and warranties.
In Section 2.7 of the Preferred Stock Purchase Agreement, Issuer
agreed to use its best efforts to obtain as soon as reasonably possible all
consents, approvals and/or actions of the Issuer's stockholders as may be
necessary to authorize the issuance to Sub of the Series H Preferred Stock,
and of shares of Common Stock issuable upon conversion of shares of
Preferred Convertible Cumulative Stock, including but not limited to
stockholder consents, approvals or actions mandated by the policies,
practices or procedures of the New York Stock Exchange or required by the
Issuer's Certificate of Incorporation, by the related Certificate of
Designations, by the Issuer's By-Laws, by Delaware law, or otherwise.
In Section 2.8 of the Preferred Stock Purchase Agreement, Issuer
agreed to use its best efforts to cause all shares of Common Stock issued
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to Sub upon the conversion of shares of Preferred Convertible Cumulative
Stock to be treated as "Registrable Securities," as that term is defined in
the Registration Rights Agreement, dated August 7, 1995, by and among the
Issuer, Computer 2000 and Sub (the "Registration Rights Agreement"), and to
cause all such shares of Common Stock, upon issuance, to be entitled to the
registration rights set forth in the Registration Rights Agreement.
In Section 3.6, Sub represents that its knowledge and experience
in financial and business matters are such that it is capable of evaluating
the merits and risks of its purchase of the Series H Preferred Stock, as
contemplated by the Preferred Stock Purchase Agreement; provided, however,
that Sub's representation set forth in such Section 3.6 shall in no way
prejudice or otherwise affect Sub's right to rely upon and enforce the
Issuer's representations, warranties, agreements, covenants and obligations
contained in the Stock Purchase Agreement or imposed by any applicable law.
Section 6.1 of the Preferred Stock Purchase Agreement provides
that the Issuer and Sub shall have the right to rely fully upon the
representations, warranties, covenants and agreements of the other party
contained in the Preferred Stock Purchase Agreement, which representations,
warranties, covenants and agreements shall survive the closing thereunder.
Section 7.1 of the Preferred Stock Purchase Agreement provides
that the Issuer agrees to indemnify, hold harmless and defend Sub and its
affiliates against and in respect of any and all claims, demands,
liabilities, losses, costs and expenses (including reasonable attorneys'
fees and litigation expenses) arising out of or based upon (i) the breach
of any representation or warranty made by the Issuer in the Preferred Stock
Purchase Agreement or (ii) the breach by the Issuer of any agreement or
covenant contained in the Preferred Stock Purchase Agreement. Section 7.2
thereof provides that Sub agrees to indemnify, hold harmless and defend the
Issuer and its affiliates against and in respect of any and all claims,
demands, liabilities, losses, costs and expenses (including reasonable
attorneys' fees and litigation expenses) arising out of or based upon
(i) the breach of any representation or warranty made by Sub in the
Preferred Stock Purchase Agreement or (ii) the breach by Sub of any
agreement or covenant contained in the Preferred Stock Purchase Agreement.
Section 7.3 provides that no claims for indemnification under Article 7 of
the Preferred Stock Purchase Agreement may be made (a) with respect to the
inaccuracy or breach of a representation or warranty, later than April 30,
2001, or (b) with respect to the breach of a covenant or agreement, later
than four years after such breach first occurred.
A Certificate of Designations of the Series H Preferred Stock, as
filed with the Delaware secretary of state on April 28, 1997 (the
"Certificate of Designations"), fixes the powers, designation, preferences
and relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions of Series H Preferred Stock.
Exhibit A to the Preferred Stock Purchase Agreement (which is appended to
this Amendment No. 4 as Exhibit K) sets forth the form of the Certificate
of Designations and is hereby incorporated by reference. Among other
things, the Certificate of Designations provides as follows:
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Dividends Payable on the Series H Preferred Stock.
Section 1 of the Certificate of Designations fixes the dividends
to which holders of Series H Preferred Stock shall be entitled. Such
holders are entitled to receive dividends payable in cash (or, through and
including the dividend payable on June 30, 1998, at the option of the
Issuer, payable in whole or in part in Common Stock valued as set forth
below, out of any funds legally available therefor, prior and in preference
to any declaration or payment of any dividend (other than a dividend
payable in shares of Common Stock of the Issuer) on the Common Stock and to
any declaration or payment of any dividend on any other series of Preferred
Stock of the Issuer (other than dividends payable in Preferred Stock of the
same series and class upon which such dividend is declared and paid), at
the rate of $7.00 per share of Series H Preferred Stock per annum (as
adjusted for any stock dividends, combinations or splits with respect to
such shares), payable quarterly on the last day of March, June, September
and December of each year, commencing June 30, 1997. Such dividends shall
accrue on each share and accrue from day to day, whether or not earned or
declared, and shall be cumulative so that if such dividends with respect to
any previous quarter dividend period at said rate per share per annum shall
not have been paid on or declared and set apart for all shares of Series H
Preferred Stock at the time outstanding, the deficiency shall be fully paid
on or declared and set apart for such shares before the Issuer makes any
distribution (as such term is defined below) to the holders of Common Stock
or any other series of Preferred Stock. The term "distribution" as used
in Section 1 of the Certificate of Designations means the transfer of cash
or property without consideration, whether by way of dividend or otherwise
(except a dividend in shares of the Issuer which are junior to the Series H
Preferred Stock as to dividends and assets and except as contemplated by
the Certificate of Designations) or the purchase or redemption of shares of
the Issuer for cash or property (except for the repurchase of Common Stock
from employees, directors, consultants and advisers pursuant to the terms
of stock purchase agreements existing on the date on which the shares of
Series H Preferred Stock are issued to Sub (the "Original Issuance Date")
under which such shares are issued), including any such transfer, purchase
or redemption by a subsidiary of the Issuer. The time of any distribution
by way of dividend shall be the date of declaration thereof and the time of
any distribution by purchase or redemption of shares shall be the day cash
or property is transferred by the Issuer, whether or not pursuant to a
contract of an earlier date; provided that, where a negotiable debt
security is issued in exchange for shares the time of the distribution is
the date when the Issuer acquires the shares in such exchange. In the
event the Issuer exercises its option to pay any dividend in whole or in
part in Common Stock, such Common Stock shall be valued as follows: (a) if
the Issuer's Common Stock is trading on the New York Stock Exchange (the
"NYSE"), at the closing price on the day such dividend accrues (whether or
not declared); (b) if the Issuer's stock is not trading on the NYSE but is
trading on any other domestic public market, at the price of the last
reported bona fide trade in such market; or (c) if the Issuers's stock is
not trading on any public market, at a price to be determined by an
investment banking firm of national reputation that has not in the prior
twelve (12) months performed any investment banking services for the Issuer
or any holder of Series H Preferred Stock.
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Liquidation Preference.
Pursuant to Section 2(a) of the Certificate of Designations, in
the event of any Liquidation Event (as defined below), either voluntary or
involuntary, the holders of Series H Preferred Stock shall be entitled to
receive by reason of their ownership thereof, prior and in preference to
any distribution of any of the assets of the Issuer to the holders of
Common Stock, or to any other series of Preferred Stock that may be issued
by the Issuer from time to time, an amount per share in cash equal to the
sum of (i) $100.00 for each outstanding share of Series A Preferred Stock,
as adjusted for any stock dividends, combinations or splits with respect to
such share (the "Original Series A Issue Price"), and (ii) an amount equal
to all accrued but unpaid dividends (whether or not declared) on each such
share (the "Liquidation Preference").
Section 2(b) of the Certificate of Designations provides that,
after the distributions described in Section 2(a) thereof have been paid,
the entire remaining assets of the Issuer legally available for
distribution to the stockholders of the Issuer shall be distributed to the
holders of any other series of Preferred Stock then outstanding, if any,
having a liquidation preference over the Common Stock (to the extent of and
in accordance with the liquidation preference rights of such other series
of Preferred Stock) and then among the holders of the Common Stock pro rata
based on the number of shares of Common Stock held by each holder.
Section 2(c) of the Certificate of Designations provides that if
in connection with any Liquidation Event (as defined below) the Issuer's
cash funds legally available for distribution to the holders of the Series
H Preferred Stock are not sufficient to pay the full Series H Preferred
Stock liquidation preference in cash, then any deficiency in the cash
payment of the Series H Preferred Stock liquidation preference shall be
paid in non-cash assets of the Issuer legally available for distribution to
the holders of Series H Preferred Stock. If the cash and non-cash assets
legally available for distribution to the holders of the Series H Preferred
Stock shall be insufficient to permit the full payment to such holders of
the full Series H Preferred Stock liquidation preference, then the entire
cash and non-cash assets of the Issuer legally available for distribution
shall be distributed ratably among the holders of the Series H Preferred
Stock in proportion to the number of such shares owned by each such holder.
In connection with the distribution of any non-cash assets in payment of
the Series H Preferred Stock liquidation preference, the non-cash assets
will be valued at their fair market value, as determined by independent
appraisal by an appraiser selected in good faith by the Board of Directors.
Section 2(d) of the Certificate of Designations provides that,
for purposes of Section 2 thereof, a "Liquidation Event" shall mean any
Reorganization Transaction (as defined below), liquidation, dissolution, or
winding up of the Issuer. A reorganization of the Issuer, for purposes of
the Certificate of Designations, shall mean any consolidation or merger of
the Issuer with or into another corporation, or other entity or person or
any other corporate reorganization, or the sale of all or substantially all
of the Issuer's assets to another person, or any transaction by the Issuer
in which an excess of 50% of the Issuer's voting power is transferred
(each, a "Reorganization Transaction").
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Conversion Rights.
The holders of the Series H Preferred Stock shall have the
conversion rights set forth in Section 4 of the Certificate of
Designations.
Pursuant to Section 4(a) of the Certificate of Designations,
subject to Section 4(c) thereof, each share of Series H Preferred Stock
shall be convertible (subject to stockholder approval of the Common Stock
issuable upon such conversion as required by the New York Stock Exchange)
at the option of the holder thereof, at any time after the Original
Issuance Date at the office of the Issuer or any transfer agent for the
Series H Preferred Stock, into such number of fully paid and nonassessable
shares of the Issuer's Common Stock as is determined by dividing the
Liquidation Preference by the Series H Conversion Price (as defined below)
then in effect.
Subsection 4(c)(i) of the Certificate of Designations provides
that the Series H Conversion Price shall be $0.715 (Seventy-One and 5/10
Cents) per share, which amount is equal to 110% of the average of the daily
closing price per share of the Common Stock on the New York Stock Exchange
for the 20 consecutive trading days immediately preceding April 28, 1997.
Subsection 4(c)(ii) of the Certificate of Designations provides
that the Series H Conversion Price shall be subject to certain adjustments.
Pursuant to subsection 4(c)(ii)(1), in the event that the Issuer at any
time or from time to time after the Original Issuance Date shall declare or
pay, without consideration, any dividend on the Common Stock payable in
shares of Common Stock or in any right to acquire shares of Common Stock
for no consideration, or shall effect a subdivision of the outstanding
shares of Common Stock into a greater number of shares of Common Stock (by
stock split, reclassification or otherwise than by payment of a dividend in
Common Stock or in any right to acquire Common Stock), or in the event the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification, reverse stock split or otherwise, into a lesser number of
shares of Common Stock, then the Series H Conversion Price in effect
immediately prior to such event shall, concurrently with the effectiveness
of such event, be proportionately decreased or increased, as appropriate.
In the event that the Issuer shall declare or pay, without consideration,
any dividend on the shares of Common Stock payable in any right to acquire
Common Stock for no consideration, then the Issuer shall be deemed to have
made a dividend payable in shares of Common Stock in an amount of shares
equal to the maximum number of shares issuable upon exercise of such rights
to acquire shares of Common Stock.
Pursuant to subsection 4(c)(ii)(2), if at any time after the
Original Issuance Date and while there are any shares of Series H Preferred
Stock outstanding, the Issuer shall issue or sell Additional Shares (as
defined below) of Common Stock at a Price Per Share (as defined below) less
than the Series H Conversion Price in effect immediately prior to such
issuance or sale, then the Series H Conversion Price then in effect shall
be adjusted to an amount determined by multiplying the Series H Conversion
Price in effect immediately prior to the new issuance by a fraction, (A)
the numerator of which is equal to the sum of (x) the number of shares of
Outstanding Common Stock immediately prior to the issuance of such
Additional Shares, and (y) the amount determined by (i) dividing the
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aggregate consideration received by the Issuer upon the issuance of such
Additional Shares, by (ii) the Series H Conversion Price in effect
immediately prior to the issuance of the Additional Shares, and (B) the
denominator of which is the number of shares of Outstanding Common Stock
immediately after the issuance of such Additional Shares.
Subsection 4(c)(ii) of the Certificate of Designations provides
that, for the purposes of subsection 4(c)(ii), the issuance of any
Convertible Securities shall be deemed an issuance at such time of the
Common Stock issuable upon exercise, conversion, or exchange of the such
Convertible Securities if the Price Per Share shall be less than the Series
H Conversion Price in effect at the time of such issuance. No adjustment
of the Series H Conversion Price shall be made under such subsection
4(c)(ii) upon the issuance of any shares of Common Stock which are issued
pursuant to the exercise, conversion, or exchange of any Convertible
Securities if any adjustment shall previously have been made upon the
issuance of any such Convertible Securities as above provided. Any
adjustment of the Series H Conversion Price made with respect to the
issuance of Convertible Securities shall be reversed if and when any such
Convertible Securities expire or are canceled without being exercised,
converted, or exchanged so that the Series H Conversion Price in effect
immediately upon such cancellation or expiration shall be equal to the
Series H Conversion Price which would have been in effect had the expired
or canceled Convertible Securities never been issued (but any such reversal
of an adjustment shall only apply as to the portion of the Convertible
Security which has expired or been canceled), with such additional
adjustments as would have been made to the Series H Conversion Price which
would have been in effect had such expired or canceled Convertible
Securities never been issued.
The provisions of subsection 4(c)(ii) shall not apply to any
issuance or distribution of Additional Shares if by reason of any other
provision of Section 4 of the Certificate of Designations an adjustment of
the Series H Conversion Price results with respect to such issuance of
Additional Shares or if the holders of Series H Preferred Stock are
entitled to receive a distribution of such Additional Shares.
For purposes of subsection 4(c)(ii) of the Certificate of
Designations, the following definitions apply:
"Additional Shares" shall mean shares of Common Stock (including
Common Stock deemed issued upon the issuance of Convertible Securities),
other than Excluded Additional Shares (the issuance of which shall not
result in any adjustment of the Series H Conversion Price). "Convertible
Securities" shall mean any securities (whether debt or equity) issued by
the Issuer which are exercisable, convertible, or exchangeable into or for
shares of Common Stock.
"Excluded Additional Shares" shall mean: (1) Any Existing
Securities, excluding any increase in the Common Stock or Convertible
Securities which may be issued pursuant to Existing Securities as a result
of any modifications or amendments to Existing Securities occurring after
the Original Issuance Date; (2) any Common Stock or Convertible Securities
issued after the Original Issuance Date to any employee, consultant,
advisor, officer, or director of the Issuer or any subsidiary thereof
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pursuant to any incentive or compensation agreement, arrangement, or plan
approved by the Board of Directors; (3) any Common Stock issued in
connection with any stock dividend on the Common Stock which is also
payable to the Series H Preferred Stock pursuant to any provision of
Section 4 of the Certificate of Designations; or (4) any Common Stock
issued upon conversion of the Series H Preferred Stock.
"Existing Securities" shall mean any Common Stock or Convertible
Securities issued with respect to any options, notes, rights, warrants, or
other securities of the Issuer outstanding as of the Original Issuance
Date, and shall include all shares of Series H Preferred Stock issued as of
the Original Issuance Date.
"Outstanding Common Stock" shall mean all shares of Common Stock
of the Issuer outstanding (on a fully diluted basis) at the time of a
calculation under paragraph 4(c)(ii), assuming for this purpose that all
then-outstanding Convertible Securities are then deemed exercised,
converted, or exchanged into shares of Common Stock.
"Price Per Share" shall be determined as follows:
(1) In the case of an issuance of shares of Common Stock for cash, the
Price Per Share shall mean the per share cash consideration received by the
Issuer for such shares.
(2) The Price Per Share for purposes of Convertible Securities shall mean
the amount equal to the consideration received by the Issuer upon the
issuance of such Convertible Securities, plus the amount of consideration
payable to the Issuer upon exercise, conversion, or exchange thereof,
divided by the aggregate number of shares of Common Stock that would be
issued if all such Convertible Securities were exercised, exchanged, or
converted.
(3) The Price Per Share for purposes of Convertible Securities shall be
determined in each instance as of the date of issuance of the Convertible
Securities without giving effect to any possible future price adjustments
or rate adjustments pursuant to the provisions of such Convertible
Securities which may result from any adjustments in the Series H Conversion
Price pursuant to the provisions of Section 4 of the Certificate of
Designations.
(4) If a part or all of the consideration received by the Issuer in
connection with the issuance of securities consists of property other than
cash, the value of such consideration shall be the fair market value of
such property as determined by the Board of Directors in good faith.
Section 4(d) of the Certificate of Designations provides that, in
the event the Issuer shall declare a distribution payable in securities of
other persons, in evidences of indebtedness issued by the Issuer or other
persons or in assets (excluding cash dividends) or in rights not referred
to in subsection 4(c)(ii), then, in each such case for the purpose of
Section 4(d), the holders of Series H Preferred Stock shall be entitled to
a proportionate share of any such distribution as though they were the
holders of the number of shares of Common Stock of the Issuer into which
their shares of Series H Preferred Stock are convertible as of the record
date fixed for the determination of the holders of Common Stock of the
Issuer entitled to receive such a distribution.
PAGE 12 OF 64 PAGES
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Pursuant to Section 4(e) of the Certificate of Designations, if
at any time or from time to time there shall be a recapitalization of the
Common Stock (other than a subdivision, combination or reclassification),
provision shall be made so that the holders of Series H Preferred Stock
shall thereafter be entitled to receive, upon conversion of their Series H
Preferred Stock, the number of shares of stock or other securities or
property of the Issuer, or otherwise, to which a holder of Common Stock
deliverable upon conversion would have been entitled in such
recapitalization as if converted immediately prior to such
recapitalization. In any such case, appropriate adjustment shall be made
in the application of the provisions of Section 4 of the Certificate of
Designations with respect to the rights of the holders of Series H
Preferred Stock after the recapitalization to the end that the provisions
of Section 4 (including adjustment of the Series H Conversion Price, if
applicable, then in effect and the number of shares receivable upon
conversion of Series H Preferred Stock) shall be applicable after that
event as nearly equivalent as may be practicable.
Pursuant to Section 4(f) of the Certificate of Designations, the
Issuer will not, by amendment of its Certificate of Incorporation or
through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed under the
Certificate of Designations by the Issuer but will at all times in good
faith assist in the carrying out of all the provisions of Section 4 and in
the taking of all such action as may be necessary or appropriate in order
to protect the Conversion Rights of the holders of the Series H Preferred
Stock against impairment.
Voting Rights.
Pursuant to Section 6 of the Certificate of Designations, the
holder of each share of Series H Preferred Stock shall have the right to
one vote for each share of Common Stock into which such Series H Preferred
Stock could then be converted (with any fractional share determined on an
aggregate conversion basis being rounded to the nearest whole share).
Shares of Series H Preferred Stock shall have full voting rights and powers
equal to the voting rights and powers of the holders of Common Stock, and
shall be entitled, notwithstanding any provision of the Certificate of
Designations, to notice of any stockholders' meeting in accordance with the
bylaws of the Issuer. Subject to the provisions of Section 7 of the
Certificate of Designations, shares of Series H Preferred Stock shall vote
with holders of Common Stock as a single class with respect to any question
upon which holders of Common Stock have the right to vote; provided,
however, that the holders of Series H Preferred Stock will vote as a class
on matters to which a class vote is required under Delaware law.
Restrictions and Limitations
Pursuant to Section 7 of the Certificate of Designations, without
the vote or written consent of the holders of at least eighty percent (80%)
of the then outstanding shares of Series H Preferred Stock, the Issuer will
not:
(a) Authorize or issue, or obligate itself to issue, any other equity
security (including any security convertible into or exercisable for any
equity security) senior to or at parity with the Series H Preferred Stock
PAGE 13 OF 64 PAGES
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as to dividend rights, redemption rights or liquidation preferences or
which have voting rights as to matters upon which the holders of Common
Stock are entitled to vote that provide for more votes in any such matters
than one vote for each share of Common Stock into which such equity
security could then be converted into Common Stock in accordance with the
conversion rights of such equity security;
(b) Amend its Certificate of Incorporation (including the Certificate of
Designations) if such amendment would adversely affect any of the rights,
preferences or privileges provided for therein or herein for the benefit of
the shares of Series H Preferred Stock; or
(c) Engage in a Reorganization Transaction that would adversely affect any
of the rights, preferences or privileges of the Series H Preferred Stock.
No Preemptive Rights
Pursuant to Section 9 of the Certificate of Designations, the
holders of the Series H Preferred Stock shall not have any preemptive
rights.
Item 5. SECURITY AND ISSUER
Paragraph (a) of Item 5 of Schedule 13D is hereby amended in its
entirety to read as set forth below:
(a) As of the date of this Amendment No. 4, each of C2000 and Sub
beneficially owns a total of approximately 78,307,920 shares of Common
Stock, consisting of:
(i) 36,349,878 shares of Common Stock and
(ii) 300,000 shares of Series H Preferred Stock, convertible at the option
of Sub into approximately 41,958,041 shares of Common Stock.
If Sub were to exercise its existing right as of the date of this Amendment
No. 4 to convert all of the 300,000 shares of Series H Preferred Stock that
it holds into approximately 41,958,041 shares of Common Stock, then each of
C2000 and Sub would be the beneficial owner of approximately
78,307,920 shares of Common Stock, representing on such conversion date a
beneficial ownership of approximately 72% of the approximately 109,005,433
shares of Common Stock that would be issued and outstanding as the result
of such exercise, based upon Issuer's representation in its Annual Report
on Form 10-K for the fiscal year ended September 30, 1996 that 67,047,392
shares of Common Stock were outstanding as of December 12, 1996.
PAGE 14 OF 64 PAGES
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Item 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of Schedule 13D is hereby amended by the addition of
Exhibit K.
Exhibit K: Preferred Stock Purchase Agreement, dated April 28, 1997, by and
between Sub and Issuer, together with Exhibits A and B thereto.
PAGE 15 OF 64 PAGES
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SCHEDULE I
Schedule I of Schedule 13D is amended in its entirety to read as
follows:
COMPUTER 2000, INC.
COMPUTER 2000, INC. BOARD OF DIRECTORS
Name: Martin Loeffler
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich, Germany
Occupation/
Employment: Director - Corporate Controlling, Computer 2000 AG
Citizenship: German
Name: Richard Obermaier
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich, Germany
Occupation/
Employment: Manager, Controlling Department, Computer 2000 AG
Citizenship: German
Name: Juergen Wendt
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich
Germany
Occupation/
Employment: Director - Corporate Treasury, Computer 2000 AG
Citizenship: German
COMPUTER 2000, INC. EXECUTIVE OFFICERS
Name: Martin Loeffler, President
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich
Germany
Occupation/
Employment: Director - Corporate Controlling, Computer 2000 AG
Citizenship: German
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Name: Juergen Wendt, Vice President & Treasurer
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich
Germany
Occupation/
Employment: Director - Corporate Treasury, Computer 2000 AG
Citizenship: German
Name: Richard Obermaier, Secretary
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich, Germany
Occupation/
Employment: Manager, Controlling Department, Computer 2000 AG
Citizenship: German
PAGE 17 OF 64 PAGES
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COMPUTER 2000 AG
COMPUTER 2000 AG MANAGEMENT BOARD
Name: Walter von Szczytnicki, Chairman
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich, Germany
Occupation/
Employment: Chairman of the Management Board of Computer 2000 AG;
Member of the Management Board of Kloeckner & Co. AG
Citizenship: German
Name: Dieter Bock
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich, Germany
Occupation/
Employment: Member of the Management Board of Computer 2000 AG
Citizenship: German
Name: Pertti Ervi
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich, Germany
Occupation/
Employment: Member of the Management Board of Computer 2000 AG
Citizenship: Finnish
Name: Manfred Guenzel
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich, Germany
Occupation/
Employment: Member of the Management Board of Computer 2000 AG
Citizenship: German
Name: Dr. Harry Krischik
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich, Germany
Occupation/
Employment: Member of the Management Board of Computer 2000 AG
Citizenship: German
PAGE 18 OF 64 PAGES
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COMPUTER 2000 AG SUPERVISORY BOARD
Name: Dr. Helmut Burmester, Chairman
Address: Kloeckner & Co. AG
Kloeckner Haus
Neudorfer Str. 3-5
47057 Duisburg, Germany
Occupation/
Employment: Chairman of the Management Board of Kloeckner & Co. AG
Citizenship: German
Name: Dr. Arno Puhlmann
Address: c/o Bayerische Vereinsbank
Kardinal-Faulhaber-Str. 14
80333 Munich, Germany
Occupation/
Employment: Member of the Board of Bayerische Vereinsbank AG (retired)
Citizenship: German
Name: Klaus-Dieter Laessker
Address: Colonia Versicherungs AG
Colonia-Allee 10-20
51067 Cologne, Germany
Occupation/
Employment: Colonia Verischerung AG, Chairman of the Board; Nordstern
Allgemeine Versicherungs AG, Chairman of the Board
Citizenship: German
Name: Maximilian Ardelt, Vice-Chairman
Address: VIAG AG
Nymphenburger Str. 39
80335 Munich, Germany
Occupation/
Employment: Chairman of the Supervisory Board of Kloeckner & Co. AG;
Member of the Management Board of VIAG AG
Citizenship: German
Name: Michael Huetten
Address: Kloeckner & Co. AG
Kloeckner Haus
Neudorfer Str. 3-5
47057 Duisburg, Germany
Occupation/
Employment: Member of the Board of Kloeckner & Co. AG
Citizenship: German
PAGE 19 OF 64 PAGES
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Name: Susanne Frey, Employees' Representative
Address: Computer 2000 GmbH
Baierbrunner Str. 31
81379 Munich, Germany
Occupation/
Employment: Manager Sales/Marketing Components Department, Computer 2000
GmbH
Citizenship: German
Name: Paul Holdschik, Employees' Representative
Address: Computer 2000 GmbH
Baierbrunner Str. 31
81379 Munich, Germany
Occupation/
Employment: Manager Tele-Sales Department, Computer 2000 GmbH
Citizenship: German
Name: Norbert Sourek, Employees' Representative
Address: Computer 2000 GmbH
Baierbrunner Str. 31
81379 Munich, Germany
Occupation/
Employment: Manager Legal Department, Computer 2000 GmbH
Citizenship: German
PAGE 20 OF 64 PAGES
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KLOECKNER & CO. AG
KLOECKNER & CO. AG MANAGEMENT BOARD
Name: Dr. Helmut Burmester, Chairman
Address: Kloeckner & Co. AG
Kloeckner Haus
Neudorfer Str. 3-5
47057 Duisburg, Germany
Occupation/
Employment: Chairman of the Management Board of Kloeckner & Co. AG
Citizenship: German
Name: Raimund Muesers
Address: Kloeckner & Co. AG
Kloeckner Haus
Neudorfer Str. 3-5
47057 Duisburg, Germany
Occupation/
Employment: Member of the Management Board of Kloeckner & Co. AG
Citizenship: German
Name: Carl H. Graf von Pueckler
Address: Kloeckner & Co. AG
Kloeckner Haus
Neudorfer Str. 3-5
47057 Duisburg, Germany
Occupation/
Employment: Member of the Management Board of Kloeckner & Co. AG
Citizenship: German
Name: Michael Huetten
Address: Kloeckner & Co. AG
Kloeckner Haus
Neudorfer Str. 3-5
47057 Duisburg, Germany
Occupation/
Employment: Member of the Management Board of Kloeckner & Co. AG
Citizenship: German
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Name: Walter von Szczytnicki
Address: Computer 2000 AG
Wolfratshauser Str. 84
81379 Munich, Germany
Occupation/
Employment: Chairman of the Management Board of Computer 2000 AG;
Member of the Management Board of Kloeckner & Co. AG
Citizenship: German
PAGE 22 OF 64 PAGES
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KLOECKNER & CO. AG SUPERVISORY BOARD
Name: Maximilian Ardelt, Chairman
Address: VIAG AG
Nymphenburger Str. 37
80335 Munich, Germany
Occupation/
Employment: Vice Chairman of the Supervisory Board of Computer 2000 AG;
Chairman of the Supervisory Board of Kloeckner & Co. AG;
Member of the Management Board of VIAG AG
Citizenship: German
Name: Dr. Kurt Hochheuser
Address: Commerzbank AG
Benrather Str. 19
40213 Duesseldorf, Germany
Occupation/
Employment: Member of the Management Board of Commerzbank AG
Citizenship: German
Name: Dr. Manfred Klis
Address: Bayernwerk AG
Nymphenburger Str. 39
80335 Munich, Germany
Occupation/
Employment: Member of the Management Board of Bayernwerk AG
Citizenship: German
Name: Dr. Otto Majewski
Address: Bayernwerk AG
Nymphenburger Str. 39
80335 Munich, Germany
Occupation/
Employment: Chairman of the Management Board of Bayernwerk AG
Citizenship: German
Name: Dr. Georg Obermeier
Address: VIAG AG
Nymphenburger Str. 37
80335 Munich, Germany
Occupation/
Employment: Chairman of the Management Board of VIAG AG
Citizenship: German
PAGE 23 OF 64 PAGES
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Name: Guenter Domke
Address: HBV
Friedrich-Ebert-Str. 59-61
40210 Duesseldorf, Germany
Occupation/
Employment: Union Secretary, HBBV
Citizenship: German
Name: Bernhard Doblinger
Address: Kloeckner Stahlhandel GmbH
Auweg 40
93055 Regensburg, Germany
Occupation/
Employment: Chairman of the Staff Council; Vice-Chairman of the Staff-
Council of the Group of Kloeckner & Co. AG
Citizenship: German
Name: Dr. Wolf Roth
Address: Kloeckner & Co. AG
Kloeckner Haus
Neudorfer Str. 3-5
47057 Duisburg, Germany
Occupation/
Employment: Lawyer, Kloeckner & Co. AG
Citizenship: German
Name: Horst Schmidt, Vice Chairman
Address: Kloeckner & Co. AG
Kloeckner Haus
Neudorfer Str. 3-5
47057 Duisburg, Germany
Occupation/
Employment: Vice Chairman of the Supervisory Board of Kloeckner & Co.
AG; Representative of the Trade Council
Citizenship: German
Name: Jutta Kuthning
Address: Kloeckner & Co. AG
Kloeckner Haus
Neudorfer Str. 3-5
47057 Duisburg, Germany
Occupation/
Employment: Employee of Kloeckner & Co. AG
Citizenship: German
PAGE 24 OF 64 PAGES
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Name: Peter Berkessel
Address: HBV
Kanzlerstr. 8
40728 Duesseldorf, Germany
Occupation/
Employment: Main Management, Board of Trade Union
Citizenship: German
PAGE 25 OF 64 PAGES
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BAYERNWERK AG
BAYERNWERK AG MANAGEMENT BOARD
Name: Dr. Otto Majewski, Chairman
Address: Bayernwerk AG
Nymphenburger Str. 39
80335 Munich, Germany
Occupation/
Employment: Chairman of the Management Board of Bayernwerke AG
Citizenship: German
Name: Eberhard Wild
Address: Bayernwerk AG
Nymphenburger Str. 39
80335 Munich, Germany
Occupation/
Employment: Member of the Management Board of Bayernwerk AG
Citizenship: German
Name: Willi Gerner
Address: Bayernwerk AG
Nymphenburger Str. 39
80335 Munich, Germany
Occupation/
Employment: Member of the Management Board of Bayernwerk AG
Citizenship: German
Name: Dr. Manfred Klis
Address: Bayernwerk AG
Nymphenburger Str. 39
80335 Munich, Germany
Occupation/
Employment: Member of the Management Board of Bayernwerke AG
Citizenship: German
Name: Klaus Forster
Address: Bayernwerk AG
Nymphenburger Str. 39
80335 Munich, Germany
Occupation/
Employment: Member of the Management Board of Bayernwerke AG
Citizenship: German
PAGE 26 OF 64 PAGES
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Name: Rainer Frank Elsaesser
Address: Bayernwerk AG
Nymphenburger Str. 39
80335 Munich, Germany
Occupation/
Employment: Member of the Management Board of Bayernwerke AG
Citizenship: German
BAYERNWERK AG SUPERVISORY BOARD
Name: Dr. Georg Obermeier, Chairman
Address: VIAG AG
Nymphenburger Str. 37
80335 Munich, Germany
Occupation/
Employment: Chairman of the Management Board of VIAG AG
Citizenship: German
Name: Edmond Alphandery
Address: 32, rue de Monceau
F-75008 Paris, France
Occupation/
Employment: President du Conseil d'Administration d'EDF, Paris
Citizenship: French
Name: Ministerialdirektor Gerhard Flaig
Address: Bayer. Staatsministerium der Finanzen
Odeonsplatz 4
80333 Munich, Germany
Occupation/
Employment: Head of the government department of the Bavarian Finance
Ministry; government official
Citizenship: German
Name: Prof. Dr. Joachim Milberg
Address: Bayerische Motorenwerke AG
Knorrstr. 147
80937 Munich, Germany
Occupation/
Employment: Member of the Management Board of BMW AG.
Citizenship: German
PAGE 27 OF 64 PAGES
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Name: Dr. Klaus Rauscher
Address: Bayerische Landesbank Girozentrale
Brienner Str. 20
80333 Munich, Germany
Occupation/
Employment: Member of the Management Board of Bayerische Landesbank
Girozentrale
Citizenship: German
Name: Dipl.-Kfm. Jochen Schirner
Address: VAW Aluminium AG
Georg-von-Bogelager-Str. 25
53117 Bonn, Germany
Occupation/
Employment: Chairman of the Management Board of VAW Aluminium AG
Citizenship: German
Name: Dr. Paul Siebertz
Address: Bayerische Vereinsbank AG
Am Tucherpark 16
80538 Munich, Germany
Occupation/
Employment: Member of the Management Board of BV AG
Citizenship: German
Name: Heribert Spaeth
Address: Max-Josef-Str. 4
80333 Munich, Germany
Occupation/
Employment: Honorary president of the German Central Craftsman
Association
Citizenship: German
Name: Prof. Rudolf Streicher
Address: Steyr-Daimler-Puch AG
Liebenauer Hauptstr. 317
A-8041 Graz, Austria
Occupation/
Employment: Chairman of the Management Board
Citizenship: Austrian
Name: Dr. Georg Freiherr von Waldenfels
Address: VIAG AG
Nymphenburger Str. 37
80335 Munich, Germany
Occupation/
Employment: Member of the Management Board of VIAG AG
Citizenship: German
PAGE 28 OF 64 PAGES
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Name: Juergen Feuchtmann
Address: OeTV Bezirksverwaltung Bayern
Schwanthaler Str. 64
80336 Munich, Germany
Occupation/
Employment: District Managing Director, OeTV Trade Union of Bavaria
Citizenship: German
Name: Karl-Heinz Gassner
Address: Betriebsdir. KW Pleinting
Postfach 0229
94474 Vilshofen, Germany
Occupation/
Employment: Factory Director, Pleinting
Citizenship: German
Name: Johann Kaltenhauser
Address: BR-Vorsitzender KK I 2 GmbH
Postfach 1106
84051 Essenbach, Germany
Occupation/
Employment: Chairman of the Staff Council, Driver in a nuclear plant
Citizenship: German
Name: Ernst Lichtenegger
Address: Bayernwerk Wasserkraft AG
84513 Toeging, Germany
Occupation/
Employment: Chairman of the Staff Council; metal worker, WL Inn
Citizenship: German
Name: Branko Rakidzija
Address: Vorstandssekretariat 5
Geschaeftsfuehrer Bereich
Ver- und Entsorgung
Theodor-Heuss-Str. 2
70174 Stuttgart, Germany
Occupation/
Employment: Managing Director, Member of the Management Board of the
Group of the Trade Union OeTV
Citizenship: German
PAGE 29 OF 64 PAGES
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Name: Peter Ringlstetter
Address: KK 1 GmbH
84051 Ohn, Germany
Occupation/
Employment: Chairman of the Staff Council, metal worker
Citizenship: German
Name: Xavier Spangler
Address: Energieversorgung
Ostbayern 16
Prueferingerstr. 20
93049 Regensburg, Germany
Occupation/
Employment: Businessman
Citizenship: German
Name: Michael Wendl
Address: OeTV-Bayern
Schwanthalerstr. 64
80336 Munich, Germany
Occupation/
Employment: District Managing Director, OeTV Trade Union of Bavaria
Citizenship: German
Name: Sabine Wetzel
Address: Thueringer Energie AG
Schwerbornerstr. 30
99087 Erfurt, Germany
Occupation/
Employment: Chairwoman of the Group Staff Council
Citizenship: German
Name: Manfred Wolter
Address: Grosskraftwerk Franken AG
Felsenstr. 14
90449 Germany
Occupation/
Employment: Chairman of the Staff Council, Controller of a Nuclear Block
Citizenship: German
PAGE 30 OF 64 PAGES
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VIAG AG
VIAG AG MANAGEMENT BOARD
Name: Dr. Georg Obermeier, Chairman
Address: VIAG AG
Nymphenburger Str. 37
80335 Munich, Germany
Occupation/
Employment: Chairman of the Management Board of VIAG AG
Citizenship: German
Name: Dr. Georg Freiherr von Waldenfels
Address: VIAG AG
Nymphenburger Str. 37
80335 Munich, Germany
Occupation/
Employment: Member of the Management Board of VIAG AG
Citizenship: German
Name: Rainer Grohe
Address: VIAG AG
Nymphenburger Str. 37
80335 Munich, Germany
Occupation/
Employment: Member of the Managment Board of VIAG AG
Citizenship: German
Name: Maximilian Ardelt
Address: VIAG AG
Nymphenburger Str. 37
80335 Munich, Germany
Occupation/
Employment: Deputy Chairman of the Supervisory Board of Computer 2000
AG; Chairman of the Supervisory Board of Kloeckner & Co. AG;
Member of the Management Board of VIAG AG
Citizenship: German
PAGE 31 OF 64 PAGES
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VIAG AG SUPERVISORY BOARD
Name: Dr. Jochen Holzer, Chairman
Address: Brienner Str. 9
80333 Munich, Germany
Occupation/
Employment: Chairman of the Supervisory Board of VIAG AG
Citizenship: German
Name: Guenter Malott, Vice Chairman
Address: IG Chemie Papier Keramik
Koenigsworther Platz 6
30167 Hannover, Germany
Occupation/
Employment: Vice Chairman of the Supervisory Board of VIAG AG; Secretary
of the Management Board, Member of the Management Board of
IG Chemie-Papier-Keramik
Citizenship: German
Name: Ministerialdirektor Dr. Rudolf Hanisch
Address: Amtschef der Bayerischen Staatskanzlei
Franz-Josef-Strauss-Ring 1
80539 Munich, Germany
Occupation/
Employment: Head of the government department of the Bavarian state
chancellery; government official
Citizenship: German
Name: Hans-Olaf Henkel
Address: Bundesverband der Deutschen Industrie e.V.
Gustav-Heinemann-Ufer 84-88
50968 Cologne, Germany
Occupation/
Employment: President of BDI e.V.
Citizenship: German
Name: Dr. Juergen Krumnow
Address: Deutsche Bank AG
Taunusanlage 12
60325 Frankfurt/Main, Germany
Occupation/
Employment: Member of the Board of Directors
Citizenship: German
PAGE 32 OF 64 PAGES
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Name: Dr. Eberhard Martini
Address: Bayerische Hypotheken- und Wechsel-Bank
Arabellastr. 12
81925 Munich, Germany
Occupation/
Employment: Speaker of the Management Board
Citizenship: German
Name: Friedel Neuber
Address: Westdeutsche Landesbank Girozentrale
Herzogstr. 15
40217 Duesseldorf, Germany
Occupation/
Employment: Chairman of the Management Board
Citizenship: German
Name: Dr. Alfred Pfeiffer
Address: c/o SKW-Trostberg AG
Dr.-Albert-Frank-Str. 32
83308 Trostberg, Germany
Occupation/
Employment: Member of the Supervisory Board of VIAG AG
Citizenship: German
Name: Edzard Reuter
Address: Daimler-Benz AG
Epple Str. 225
70567 Stuttgart, Germany
Occupation/
Employment: Member of the Supervisory Board of VIAG AG
Citizenship: German
Name: Dr. Albrecht Schmidt
Address: Bayerische Vereinsbank AG
Kardinal-Faulhaber-Str. 14
80333 Munich, Germany
Occupation/
Employment: Speaker of the Management Board
Citizenship: German
PAGE 33 OF 64 PAGES
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Name: Dr. Wilhelm Winterstein
Address: Bankhaus Merck, Fink & Co.
Pacellistr. 16
80333 Munich, Germany
Occupation/
Employment: Chairman of the Board of Directors
Citizenship: German
Name: Peter Fassbender
Address: VAW Aluminium AG Erftwerk
Aluminium Str. 2
41515 Grevenbroich, Germany
Occupation/
Employment: Chairman of the Staff Council
Citizenship: German
Name: Elisabeth Hehl
Address: ZARGES Leichtbau GmbH
Postfach
82362 Weilheim, Germany
Occupation/
Employment: Chairwoman of the Group Staff Council
Citizenship: German
Name: Willi Hemer
Address: IG Metall Vorstand
Abt. Gewerkschaftliche Betriebspolitik
Lyoner Str. 32
60519 Frankfurt/Main, Germany
Occupation/
Employment: Secretary of the Management Board
Citizenship: German
Name: Dr. Peter Kniep
Address: SKW Trostberg AG
Dr.-Albert-Frank-Str. 32
83308 Trostberg, Germany
Occupation/
Employment: Factory Director
Citizenship: German
PAGE 34 OF 64 PAGES
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Name: Horst Kraemer
Address: Schmalbach-Lubeca AG
Im Werk 44
Hauptstr. 170
56575 Weissenthurm, Germany
Occupation/
Employment: Chairman of the Staff Council at Plant 44
Citizenship: German
Name: Armin Schreiber
Address: Bayernwerk AG
WL KKW Grafenrheinfeld
97506 Grafenrheinfeld, Germany
Occupation/
Employment: Chairman of the Staff
Citizenship: German
Name: Horst Seidel
Address: SHS Organisationsberatung
Kirchhof 5
31848 Bad Muender, Germany
Occupation/
Employment: Owner
Citizenship: German
Name: Friedel Unterberg
Address: Gerresheimer Glas AG
Heyestr. 178
40625 Duesseldorf, Germany
Occupation/
Employment: Chairman of the Group Staff Council
Citizenship: German
Name: Josef Wolferstetter
Address: SKW Trostberg AG
Dr.-Albert-Frank-Str. 32
83308 Trostberg, Germany
Occupation/
Employment: Member of the Central Staff Council
Citizenship: German
PAGE 35 OF 64 PAGES
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: May 6, 1997
COMPUTER 2000 AG
By: /s/ Manfred Guenzel
Name: Manfred Guenzel
Title: Member of the Management Board
By: /s/ Dr. Harry Krischik
Name: Dr. Harry Krischik
Title: Member of the Management Board
COMPUTER 2000, INC.
By: /s/ Richard Obermaier
Name: Richard Obermaier
Title: Corporate Secretary and Director
PAGE
<PAGE>
EXHIBIT K TO SCHEDULE 13D
Preferred Stock Purchase Agreement, dated April 28, 1997, by and between
Computer 2000, Inc. and AmeriQuest Technologies, Inc., together with
Exhibit A (Form of Certificate of Designations) and Exhibit B (Form of
Opinion of Counsel) thereto.
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This PREFERRED STOCK PURCHASE AGREEMENT, dated April 28, 1997
(together with the exhibits appended hereto, the "Agreement"), is made and
entered into by and between Computer 2000, Inc., a Delaware corporation
("Purchaser"), and AmeriQuest Technologies, Inc., a Delaware corporation
("Company").
W I T N E S S E T H:
WHEREAS, the Company has authorized the sale and issuance of
300,000 shares of its Series H Cumulative Convertible Preferred Stock, par
value $0.001 per share (the "Preferred Stock"), a new series of preferred
stock that has in addition to those powers, designation, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof set forth in the
Company's Certificate of Incorporation, as amended (the "AQS Certificate of
Incorporation"), those additional powers, designation, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, in each case, as fixed
in the Certificate of Designations, dated April 25, 1997, in the form
attached hereto as Exhibit A (the "Certificate of Designations"); and
WHEREAS, the Company desires to sell, and the Purchaser desires
to purchase, 300,000 shares of Preferred Stock (the "Shares") on the terms
and subject to the conditions set forth in this Agreement; and
WHEREAS, the purchase of the Preferred Stock as contemplated
herein is intended to fulfill the commitment of Computer 2000 AG, the
parent company of the Purchaser, to provide the Company with additional
financing early in calendar year 1997,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
SALE OF SHARES AND CLOSING
1.1 ISSUANCE AND SALE; PURCHASE OF SHARES. Subject to the terms
and conditions hereof, on the Closing Date (as defined herein) the Company
agrees to issue and sell to the Purchaser, and the Purchaser agrees to
purchase from the Company, the Shares.
1.2 PURCHASE PRICE. The aggregate payment to be made by
Purchaser for the Shares shall be $30,000,000, equal to a purchase price of
$100.00 per share (the "Purchase Price"), payable in the manner provided in
Section 1.3.
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1.3 CLOSING. The closing shall take place at 10:00 A.M. local
time at the offices of Gibson, Dunn & Crutcher LLP, Irvine, California (the
"Closing"), or at such other place as the Purchaser and the Company shall
mutually agree, on May 1, 1997, or on such other time and date as the
Purchaser and the Company shall mutually agree (the "Closing Date").
(a) At the Closing, the Purchaser shall pay to or for the
benefit of the Company the Purchase Price by wire transfer of immediately
available funds to such account or accounts as the Company and the
Purchaser shall mutually agree.
(b) Simultaneously, the Company shall assign and transfer to the
Purchaser good and valid title in and to the Shares by delivering to the
Purchaser a certificate or certificates representing the Shares.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF COMPANY
The Company hereby represents, warrants and agrees as follows:
2.1 ORGANIZATION OF COMPANY. The Company is a corporation duly
organized, validly existing and in good standing under the Laws of the
State of Delaware. The Company has full corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder
and to consummate the transactions contemplated hereby, including without
limitation to issue, sell and transfer (pursuant to this Agreement) the
Shares. The Company is duly qualified, licensed or admitted to do business
and is in good standing in all jurisdictions in which the ownership, use or
leasing of its assets, or the conduct or nature of its business, makes such
qualification, licensing or admission necessary and in which the failure to
be so qualified, licensed or admitted and in good standing could reasonably
be expected to have an adverse effect on the validity or enforceability of
this Agreement or on the ability of the Company to perform its obligations
hereunder.
2.2 AUTHORITY. The execution and delivery by the Company of
this Agreement, and the performance by the Company of its obligations
hereunder, have been duly and validly authorized by the Board of Directors
of the Company, no other corporate action on the part of the Company being
necessary. No consent, approval or action of the Company's stockholders,
including but not limited to stockholder consents, approvals or actions
mandated by the policies, practices or procedures of the New York Stock
Exchange, is necessary in connection with the issuance or sale of the
Shares to Purchaser as contemplated in this Agreement. This Agreement has
been duly and validly executed and delivered by the Company and constitutes
a legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium, reorganization and other
similar laws relating to or affecting the enforcement of creditors' rights
generally.
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2.3 SHARES AND COMMON STOCK DULY AUTHORIZED AND VALIDLY ISSUED.
The Shares are duly authorized, validly issued, outstanding, fully paid and
nonassessable. The Company's common stock, par value $0.01 per share (the
"Common Stock"), into which the Shares may be converted, as provided in the
Certificate of Designations, is duly authorized and, upon the Purchaser's
exercise of its right to convert Shares into shares of Common Stock, such
Common Stock will be validly issued, outstanding, fully paid and
nonassessable. Upon exercise by the Purchaser of its right to convert
Shares into Common Stock, the delivery of a certificate or certificates
representing such Common Stock will transfer to the Purchaser good and
valid title to the Common Stock, free and clear of all Liens. The delivery
of a certificate or certificates at the Closing representing the Shares in
the manner provided in Section 1.3 will transfer to the Purchaser good and
valid title to the Shares, free and clear of all Liens. As used in this
Agreement, "Liens" means any pledge, assessment, security interest, lien,
adverse claim, levy, charge or other encumbrance of any kind, or any
conditional sale contract or other contract to give any of the foregoing.
2.4 NO CONFLICTS. The execution and delivery by the Company of
this Agreement do not, and the performance by the Company of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the AQS Certificate of Incorporation
or the Company's by-laws;
(b) conflict with or result in a violation or breach of any term
or provision of any Law or Order (each, as defined below) applicable to the
Company; or
(c) conflict with or result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default
under, any contract or license to which the Company is a party or by which
any of its assets is bound or result in the creation or imposition of any
Lien upon the Company or any of its assets or upon the Shares or any shares
of Common Stock.
As used in this Agreement, "Law" means any law, statute, rule, regulation,
ordinance or other pronouncement having the effect of law in the United
States or in any other country, or in any state, providence, county, city
or other political subdivision thereof. As used in this Agreement, "Order"
means any writ, judgment, decree, injunction or similar order of any
governmental or regulatory authority of the United States or of any other
country, or of any state, providence, county, city or other political
subdivision thereof (in each such case, whether preliminary or final).
2.5 GOVERNMENTAL APPROVALS AND FILINGS. No consent, approval or
action of, filing with or notice to any governmental or regulatory
authority on the part of the Company is required in connection with the
execution, delivery and performance of this Agreement or the consummation
of the transactions contemplated hereby.
2.6 LEGAL PROCEEDINGS. Other than the action captioned Kenfil
v. R.L.I. and the action captioned Leading Edge v. AmeriQuest Technologies,
Inc., there are no Actions or Proceedings (as defined below) pending or, to
the knowledge of the Company, threatened relating to or affecting the
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Company or any of its assets which (a) could reasonably be expected to
result in (i) any materially adverse change in the business, prospects,
financial condition, affairs, operations or equity ownership of the Company
or any of its assets or (ii) any material impairment of the right or
ability of the Company to carry on its business as now conducted or as
proposed to be conducted or (b) which question the legality or validity of
this Agreement or the transactions contemplated herein, or any action taken
or to be taken in connection herewith, or which seeks to prevent the
consummation of any transaction contemplated hereby by restraining,
enjoining or otherwise prohibiting or making illegal the consummation of
any of the transactions contemplated herein. As used in this Agreement,
"Actions or Proceedings" means any action, suit, proceeding, arbitration or
governmental or regulatory authority investigation or audit.
2.7 STOCKHOLDER APPROVALS. The Company agrees to use its best
efforts to obtain as soon as reasonably possible all consents, approvals
and/or actions of the Company's stockholders as may be necessary to
authorize the issuance of the Shares and of shares of Common Stock issuable
upon conversion of Shares, including but not limited to stockholder
consents, approvals or actions mandated by the policies, practices or
procedures of the New York Stock Exchange or required by the Company's
Certificate of Incorporation, by the Company's By-Laws, by the Certificate
of Designations, by Delaware law, or otherwise.
2.8 REGISTRATION RIGHTS. The Company agrees to use its best
efforts to cause all shares of Common Stock issued to the Purchaser upon
the conversion of Shares to be treated as "Registrable Securities," as that
term is defined in the Registration Rights Agreement, dated August 7, 1995,
by and among the Company, Computer 2000 AG and the Purchaser (the
"Registration Rights Agreement"), and to cause all such shares of Common
Stock, upon issuance, to be entitled to the registration rights set forth
in the Registration Rights Agreement.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASER
The Purchaser hereby represents, warrants and agrees as follows:
3.1 ORGANIZATION. The Purchaser is a corporation duly
organized, validly existing and in good standing under the Laws of the
State of Delaware. The Purchaser has full corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby.
3.2 AUTHORITY. The execution and delivery by the Purchaser of
this Agreement, and the performance by the Purchaser of its obligations
hereunder, have been duly and validly authorized by the Board of Directors
of the Purchaser, no other corporate action on the part of the Purchaser or
its stockholders being necessary. This Agreement has been duly and validly
executed and delivered by the Purchaser and constitutes a legal, valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, moratorium, reorganization and other similar laws
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relating to or affecting the enforcement of creditors' rights generally.
3.3 NO CONFLICTS. The execution and delivery by the Purchaser
of this Agreement do not, and the performance by the Purchaser of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the certificate of incorporation or
by-laws or other comparable corporate charter document of the Purchaser;
(b) conflict with or result in a violation or breach of any term
or provision of any Law or Order applicable to the Purchaser or any of its
assets; or
(c) conflict with or result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default
under, any contract or license to which the Purchaser is a party or by
which any of its assets is bound.
3.4 LEGAL PROCEEDINGS. There are no Actions or Proceedings
pending or, to the knowledge of the Purchaser, threatened relating to or
affecting the Purchaser or any of its assets which question the legality or
validity of this Agreement or the transactions contemplated herein, or any
action taken or to be taken in connection herewith, or which seeks to
prevent the consummation of any transaction contemplated hereby by
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated herein.
3.5 PURCHASE WITHOUT VIEW TO DISTRIBUTE. The Purchaser
represents and warrants to the Company that the Shares are being acquired
by the Purchaser for its own account, not with a view to resale or
distribution within the meaning of the Securities Act of 1933, as amended,
and the rules and regulations thereunder, and Purchaser will not distribute
the Shares in violation of such Act.
3.6 PURCHASER'S KNOWLEDGE AND EXPERIENCE. The Purchaser
represents that its knowledge and experience in financial and business
matters are such that it is capable of evaluating the merits and risks of
its purchase of the Shares, as contemplated by this Agreement; provided,
however, that the Purchaser's representation set forth in this Section 3.6
shall in no way prejudice or otherwise affect the Purchaser's right to rely
upon and enforce the Company's representations, warranties, agreements,
covenants and obligations contained in this Agreement or imposed by any
applicable Law.
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ARTICLE 4
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of the Purchaser hereunder are subject to the
fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by the Purchaser in
its sole discretion):
4.1 REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by the Company in this Agreement (other than those made
as of a specified date earlier than the Closing Date) shall be true and
correct in all material respects on and as of the Closing Date as though
such representation or warranty had been made on and as of the Closing
Date, and any representation or warranty made as of a specified date
earlier than the Closing Date shall have been true and correct in all
material respects on and as of such earlier date.
4.2 PERFORMANCE. The Company shall have performed and complied
with, in all material respects, each agreement, covenant and obligation
required by this Agreement to be so performed or complied with by the
Company at or before the Closing.
4.3 ORDERS AND LAWS. There shall not be in effect on the
Closing Date any Order or Law restraining, enjoining or otherwise
prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement, and there shall not be pending or
threatened on the Closing Date any Action or Proceeding or any other Action
which could reasonably be expected to result in the issuance of any such
Order, or the enactment, promulgation or deemed applicability to the
Purchaser, the Company or any of the transactions contemplated by this
Agreement.
4.4 OPINION OF COUNSEL. The Purchaser shall have received the
opinion of Gibson, Dunn & Crutcher, counsel to the Company, dated the
Closing Date, substantially in the form and to the effect of Exhibit B
hereto.
ARTICLE 5
CONDITIONS TO OBLIGATIONS OF COMPANY
The obligations of the Company hereunder are subject to the
fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by the Company in
its sole discretion):
5.1 REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by the Purchaser in this Agreement shall be true and
correct in all material respects on and as of the Closing Date as though
such representation or warranty had been made on and as of the Closing
Date.
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5.2 PERFORMANCE. The Purchaser shall have performed and
complied with, in all material respects, each agreement, covenant and
obligation required by this Agreement to be so performed or complied with
by the Purchaser at or before the Closing.
5.3 ORDERS AND LAWS. There shall not be in effect on the
Closing Date any Order or Law restraining, enjoining or otherwise
prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement, and there shall not be pending or
threatened on the Closing Date any Action or Proceeding or any other Action
which could reasonably be expected to result in the issuance of any such
Order, or the enactment, promulgation or deemed applicability to the
Purchaser, the Company or any of the transactions contemplated by this
Agreement.
ARTICLE 6
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The Company and
the Purchaser shall have the right to rely fully upon the representations,
warranties, covenants and agreements of the other party contained in this
Agreement. The representations, warranties, covenants and agreements of
the Company and the Purchaser contained in this Agreement shall survive the
Closing.
ARTICLE 7
INDEMNIFICATION
7.1 INDEMNIFICATION BY COMPANY. Effective at the Closing, the
Company agrees to indemnify, hold harmless and defend the Purchaser and its
Affiliates (as defined below), against and in respect of any and all
claims, demands, liabilities, losses, costs and expenses (including
reasonable attorneys' fees and litigation expenses) arising out of or based
upon (i) the breach of any representation or warranty made by the Company
in this Agreement or (ii) the breach by the Company of any agreement or
covenant contained in this Agreement (such indemnification and holding
harmless, together, referred to in this Agreement as "Indemnification").
As used in this Agreement, "Affiliate" means any Person that directly, or
indirectly through one of more intermediaries, controls or is controlled by
or is under common control with the Person specified; and "Person" means
any natural person, corporation, general partnership, limited partnership,
proprietorship, other business organization, trust, union, association or
Governmental or Regulatory Authority. For purposes of this definition,
control of a Person means the power, direct or indirect, to direct or cause
the direction of the management and policies of such Person whether by
contract or otherwise and, in any event and without limitation of the
previous sentence, any Person owning ten percent (10%) or more of the
voting securities of a second Person shall be deemed to control that second
Person.
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7.2 INDEMNIFICATION BY PURCHASER. Effective at the Closing, the
Purchaser agrees to indemnify, hold harmless and defend the Company and its
Affiliates against and in respect of any and all claims, demands,
liabilities, losses, costs and expenses (including reasonable attorneys'
fees and litigation expenses) arising out of or based upon (i) the breach
of any representation or warranty made by the Purchaser in this Agreement
or (ii) the breach by the Purchaser of any agreement or covenant contained
in this Agreement (also collectively referred to in this Agreement as
"Indemnification").
7.3 CERTAIN LIMITATIONS ON INDEMNIFICATION. No claims for
Indemnification under this Article 7 may be made (a) with respect to the
inaccuracy or breach of a representation or warranty, later than April 30,
2001, or (b) with respect to the breach of a covenant or agreement, later
than four years after such breach first occurred.
7.4 METHOD OF ASSERTING CLAIMS. The party seeking
Indemnification under this Article 7 (the "Indemnified Party") agrees to
give prompt notice to the party against whom Indemnification is sought (the
"Indemnifying Party") of the assertion of any claim, or the commencement of
any suit, action or proceeding, in respect of which Indemnification may be
sought under this Article 7. The Indemnifying Party may participate in
and, at its election, control the defense of any such suit, action or
proceeding at its own expense; provided that counsel selected to conduct
such defense is reasonably satisfactory to the Indemnified Party. The
Indemnifying Party shall not be liable under this Article 7 in the event
prompt notice of the assertion of a claim or the commencement of a suit,
action or proceeding in respect of which Indemnification is sought is not
given as described herein, but only to the extent the defense of such
claim, suit, action or proceeding is prejudiced thereby, or for any
settlement effected without its consent of any claim, litigation or
proceeding in respect of which Indemnification may be sought hereunder.
The Indemnifying Party may settle or compromise any claim without the prior
written consent of the Indemnified Party; provided that the Indemnifying
Party may not agree to any such settlement pursuant to which any remedy or
relief, other than monetary damages for which the Indemnifying Party shall
be responsible hereunder, shall be applied to or against the Indemnified
Party, without the prior written consent of the Indemnified Party.
ARTICLE 8
TERMINATION
8.1 TERMINATION. This Agreement may be terminated at any time:
(a) by mutual consent of the Company and the Purchaser in a
written instrument;
(b) by either the Purchaser or the Company if there has been a
material breach on the part of the other of any representation, warranty,
covenant or agreement set forth in this Agreement, which breach has not
been cured within 30 business days following receipt by the breaching party
of notice of such breach; or
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(c) by either the Company or the Purchaser if the Closing shall
not have occurred on or before May 29, 1997 unless the failure to close by
such time is due to the breach of this Agreement by the party seeking to
terminate.
8.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either the Company or the Purchaser as provided in Section
8.1, this Agreement shall forthwith become void. No termination of this
Agreement shall relieve any party from liability resulting from a breach by
such party of any of its representations, warranties, covenants or
agreements set forth herein.
ARTICLE 9
MISCELLANEOUS
9.1 NOTICES. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given
only if delivered personally or by facsimile transmission or mailed via
overnight courier to the parties at the following addresses or facsimile
numbers:
If to the Purchaser, to:
Computer 2000, Inc.
c/o Computer 2000 AG
Wolfratshauser Strasse 84
D-81379 Munch
Federal Republic of Germany
Facsimile No.: 011-49-89-7427-4402
Attn: Mr. Manfred Guenzel
with a copy to:
Rogers & Wells
200 Park Avenue
New York, New York 10166
Facsimile No.: (212) 878-8375
Attn: Klaus H. Jander, Esq.
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If to the Company, to:
AmeriQuest Technologies, Inc.
6100 Hollywood Boulevard
Seventh Floor
Hollywood, Florida 33024
Facsimile No.: (954) 989-9206
Attn: Mr. Holger Heims
with a copy to:
Gibson, Dunn & Crutcher
4 Park Plaza
Irvine, California 92714
Facsimile No.: (714) 451-4220
Attn: Thomas D. Magill, Esq.
All such notices, requests and other communications shall: (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt, and
(iii) if delivered by overnight courier in the manner described above to
the address as provided in this Section, be deemed given upon receipt (in
each case regardless of whether such notice, request or other communication
is received by any other Person to whom a copy of such notice is to be
delivered pursuant to this Section). Any party from time to time may
change its address, facsimile number or other information for the purpose
of notices to that party by giving notice specifying such change to the
other party hereto.
9.2 ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof between the parties and contains the sole and entire
agreement between the parties hereto with respect to the subject matter
hereof.
9.3 EXPENSES. Except as otherwise expressly provided in this
Agreement, whether or not the transactions contemplated hereby are
consummated, each party shall pay its own costs and expenses incurred in
connection with the negotiation, execution and closing of this Agreement
and the transactions contemplated hereby.
9.4 PUBLIC ANNOUNCEMENTS. At all times at or before the
Closing, the Company and the Purchaser shall not issue or make any reports,
statements or releases to the public or generally to the employees,
customers, suppliers or other Persons to whom the Company sell goods or
provide services or with whom the Company and the Subsidiaries otherwise
have significant business relationships with respect to this Agreement or
the transactions contemplated hereby without the consent of the other,
which consent shall not be unreasonably withheld, except to the extent that
such reports, statements or releases may be required by applicable Law.
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The Company and the Purchaser will also obtain the other party's prior
approval of any press release to be issued immediately following the
Closing announcing the consummation of the transactions contemplated by
this Agreement.
9.5 WAIVER. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party waiving such term or
condition. No waiver by any party of any term or condition of this
Agreement, in any one or more instances, shall be deemed to be or construed
as a waiver of the same or any other term or condition of this Agreement on
any future occasion. All remedies, either under this Agreement or by Law
or otherwise afforded, will be cumulative and not alternative.
9.6 AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
9.7 HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
9.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal Laws of the State of Delaware
without giving effect to the conflicts-of-laws principles thereof.
9.9 JURISDICTION. Any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement may
be brought against any of the parties in the courts of the State of New
York, County of New York, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in
any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
9.10 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Preferred Stock Purchase Agreement has
been duly executed and delivered by the duly authorized officer of each
party hereto as of the date first above written.
COMPUTER 2000, INC.
By: /s/ Richard Obermaier
Name: Richard Obermaier
Title: Corporate Secretary
AMERIQUEST TECHNOLOGIES, INC.
By: /s/ Holger Heims
Name: Holger Heims
Title: Chief Financial Officer
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EXHIBIT A
[FORM OF CERTIFICATE OF DESIGNATIONS]
CERTIFICATE OF DESIGNATIONS
OF THE
SERIES H CUMULATIVE CONVERTIBLE STOCK PREFERRED
(Par Value $0.01 Per Share)
OF
AMERIQUEST TECHNOLOGIES, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
__________________________
The undersigned, does hereby certify that the following
resolution was duly adopted by the Board of Directors of AmeriQuest
Technologies, Inc., a Delaware corporation (the "Corporation"), at a
meeting duly convened and held on April 23, 1997, at which a quorum was
present and acting throughout:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation (the "Board of
Directors") by Article FOURTH of the Certificate of Incorporation of the
Corporation, as amended by that certain Certificate of Amendment effective
as of April 1, 1996 (the "Certificate of Incorporation") the Board of
Directors hereby authorizes and approves the creation and issuance of a new
series of Preferred Stock of this Corporation upon the terms and conditions
set forth in these resolutions which fix the powers, designation,
preferences and relative, participating, optional or other special rights,
and the qualifications, limitations or restrictions thereof, of the shares
of such new series, in addition to those set forth in the Certificate of
Incorporation, as follows:
(A) SERIES H CUMULATIVE CONVERTIBLE PREFERRED STOCK. The new series
of Preferred Stock of the Corporation authorized hereby shall be designated
the "Series H Cumulative Convertible Preferred Stock" (hereinafter referred
to as the "Series H Preferred Stock"), and shall consist of 300,000 shares,
$0.01 par value per share; provided, however, that the Board of Directors
may decrease (but not increase) the number of authorized shares in such
series subsequent to the date of original issuance of shares in such series
(the "Original Issuance Date"), but not below the number of shares of such
series then outstanding. The Series H Preferred Stock is issuable solely
in whole shares that shall entitle the holder thereof to exercise the
voting rights, to participate in the distributions and to have the benefit
of all other rights of holders of Series H Preferred Stock as set forth
herein and in the Certificate of Incorporation.
(B) RIGHTS, PREFERENCES AND RESTRICTIONS OF SERIES H PREFERRED STOCK.
The Series H Preferred Stock shall have the voting power, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, as set forth below.
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For purposes of this Certificate of Designations, the terms "Common Stock"
and "Preferred Stock" shall have the meanings set forth in the Certificate
of Incorporation in effect as of the Original Issuance Date.
1. DIVIDEND PROVISIONS. The holders of shares of Series H Preferred
Stock shall be entitled to receive dividends payable in cash (or, through
and including the dividend payable on June 30, 1998, at the option of the
Corporation, payable in whole or in part in Common Stock valued as set
forth below, out of any funds legally available therefor, prior and in
preference to any declaration or payment of any dividend (other than a
dividend payable in shares of Common Stock of the Corporation) on the
Common Stock and to any declaration or payment of any dividend on any other
series of Preferred Stock of the Corporation (other than dividends payable
in Preferred Stock of the same series and class upon which such dividend is
declared and paid), at the rate of $7.00 per share of Series H Preferred
Stock per annum (as adjusted for any stock dividends, combinations or
splits with respect to such shares), payable quarterly on the last day of
March, June, September and December of each year, commencing June 30, 1997.
Such dividends shall accrue on each share and accrue from day to day,
whether or not earned or declared, and shall be cumulative so that if such
dividends with respect to any previous quarter dividend period at said rate
per share per annum shall not have been paid on or declared and set apart
for all shares of Series H Preferred Stock at the time outstanding, the
deficiency shall be fully paid on or declared and set apart for such shares
before the Corporation makes any distribution (as such term is hereinafter
defined) to the holders of Common Stock or any other series of Preferred
Stock. The term "distribution" as used in this paragraph shall mean the
transfer of cash or property without consideration, whether by way of
dividend or otherwise (except a dividend in shares of the Corporation which
are junior to the Series H Preferred Stock as to dividends and assets and
except as contemplated by this Certificate of Designations) or the purchase
or redemption of shares of the Corporation for cash or property (except for
the repurchase of Common Stock from employees, directors, consultants and
advisers pursuant to the terms of stock purchase agreements existing on the
Original Issuance Date under which such shares are issued), including any
such transfer, purchase or redemption by a subsidiary of the Corporation.
The time of any distribution by way of dividend shall be the date of
declaration thereof and the time of any distribution by purchase or
redemption of shares shall be the day cash or property is transferred by
the Corporation, whether or not pursuant to a contract of an earlier date;
provided that, where a negotiable debt security is issued in exchange for
shares the time of the distribution is the date when the Corporation
acquires the shares in such exchange. In the event the Corporation
exercises its option to pay any dividend in whole or in part in Common
Stock, such Common Stock shall be valued as follows: (a) if the
Corporation's Common Stock is trading on the New York Stock Exchange (the
"NYSE"), at the closing price on the day such dividend accrues (whether or
not declared); (b) if the Corporation's stock is not trading on the NYSE
but is trading on any other domestic public market, at the price of the
last reported bona fide trade in such market; or (c) if the Corporation's
stock is not trading on any public market, at a price to be determined by
an investment banking firm of national reputation that has not in the prior
twelve (12) months performed any investment banking services for the
Corporation or any holder of Series H Preferred Stock.
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2. LIQUIDATION PREFERENCE.
(a) SERIES H LIQUIDATION PREFERENCE. In the event of any Liquidation
Event (as defined below), either voluntary or involuntary, the holders of
Series H Preferred Stock shall be entitled to receive by reason of their
ownership thereof, prior and in preference to any distribution of any of
the assets of the Corporation to the holders of Common Stock, or to any
other series of Preferred Stock that may be issued by the Corporation from
time to time, an amount per share in cash equal to the sum of (i) $100.00
for each outstanding share of Series H Preferred Stock, as adjusted for any
stock dividends, combinations or splits with respect to such share (the
"Original Series H Issue Price"), and (ii) an amount equal to all accrued
but unpaid dividends (whether or not declared) on each such share (the
"Liquidation Preference").
(b) PARTICIPATION. After the distributions described in
subsection (a) above have been paid, the entire remaining assets of the
Corporation legally available for distribution to the stockholders of the
Corporation shall be distributed to the holders of any other series of
Preferred Stock then outstanding, if any, having a liquidation preference
over the Common Stock (to the extent of and in accordance with the
liquidation preference rights of such other series of Preferred Stock) and
then among the holders of the Common Stock pro rata based on the number of
shares of Common Stock held by each holder.
(c) INSUFFICIENT FUNDS. If in connection with any Liquidation Event
the Corporation's cash funds legally available for distribution to the
holders of the Series H Preferred Stock are not sufficient to pay the full
Series H Preferred Stock liquidation preference in cash, then any
deficiency in the cash payment of the Series H Preferred Stock liquidation
preference shall be paid in non-cash assets of the Corporation legally
available for distribution to the holders of Series H Preferred Stock. If
the cash and non-cash assets legally available for distribution to the
holders of the Series H Preferred Stock shall be insufficient to permit the
full payment to such holders of the full Series H Preferred Stock
liquidation preference, then the entire cash and non-cash assets of the
Corporation legally available for distribution shall be distributed ratably
among the holders of the Series H Preferred Stock in proportion to the
number of such shares owned by each such holder. In connection with the
distribution of any non-cash assets in payment of the Series H Preferred
Stock liquidation preference, the non-cash assets will be valued at their
fair market value, as determined by independent appraisal by an appraiser
selected in good faith by the Board of Directors.
(d) LIQUIDATION EVENT. For purposes of this Section 2, a
"Liquidation Event" shall mean any Reorganization Transaction (as defined
below), liquidation, dissolution, or winding up of the Corporation. A
reorganization of the Corporation, for purposes of this Certificate of
Designations, shall mean any consolidation or merger of the Corporation
with or into another corporation, or other entity or person or any other
corporate reorganization, or the sale of all or substantially all of the
Corporation's assets to another person, or any transaction by the
Corporation in which an excess of 50% of the Corporation's voting power is
transferred (each, a "Reorganization Transaction").
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3. REDEMPTION. Shares of the Series H Preferred Stock shall not be
subject to redemption, either mandatorily or at the option of the
Corporation or the holder thereof.
4. CONVERSION. The holders of Series H Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) RIGHT TO CONVERT. Subject to subsection (c), each share of
Series H Preferred Stock shall be convertible (subject to stockholder
approval of the Common Stock issuable upon such conversion as required by
the NYSE) at the option of the holder thereof, at any time after the
Original Issuance Date at the office of the Corporation or any transfer
agent for the Series H Preferred Stock, into such number of fully paid and
nonassessable shares of the Corporation's Common Stock as is determined by
dividing the Liquidation Preference by the Series H Conversion Price then
in effect. The Series H Conversion Price per share is set forth in
subsection 4(c).
(b) MECHANICS OF CONVERSION. Before any holder of Series H Preferred
Stock shall be entitled to convert any Shares into shares of Common Stock,
such holder shall deliver the certificate or certificates therefor, with a
duly executed election to convert, to the principal executive office of the
Corporation or of any transfer agent for the Series H Preferred Stock and
shall give written notice to the Corporation at its principal executive
office (which notice and delivery shall be deemed given when received by
the Corporation) of the election to convert some or all of its Shares and
shall state therein the number of Shares to be converted and the name or
names in which the certificate or certificates for shares of Common Stock
are to be issued. The Corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Series H
Preferred Stock or to the nominee or nominees of such holder, a certificate
or certificates for the number of shares of Common Stock to which such
holder shall be entitled as aforesaid. Such conversion shall be deemed to
have been made immediately prior to the close of business on the date of
such surrender of the shares of Series H Preferred Stock to be converted,
and the person or persons entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock as of such date.
Following the conversion of shares of Series H Preferred Stock into Common
Stock, as contemplated by this paragraph (b), the Corporation shall
promptly prepare and deliver a new certificate or new certificates to the
holder of Series H Preferred Stock representing the remaining number or
shares of Series H Preferred Stock still held by such holder following such
conversion.
(c) SERIES H CONVERSION PRICE AND ADJUSTMENTS.
(i) SERIES H CONVERSION PRICE. The Series H Conversion Price
shall be $0.715 (Seventy-One and 5/10 Cents) per share, which amount is
equal to 110% of the average of the daily closing price per share of the
Common Stock for the 20 consecutive trading days immediately preceding
April 28, 1997.
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(ii) SERIES H CONVERSION PRICE ADJUSTMENTS.
(1) SUBDIVISION, COMBINATION OR RECLASSIFICATION. In the
event that the Corporation at any time or from time to time after the
Original Issuance Date shall declare or pay, without consideration, any
dividend on the Common Stock payable in shares of Common Stock or in any
right to acquire shares of Common Stock for no consideration, or shall
effect a subdivision of the outstanding shares of Common Stock into a
greater number of shares of Common Stock (by stock split, reclassification
or otherwise than by payment of a dividend in Common Stock or in any right
to acquire Common Stock), or in the event the outstanding shares of Common
Stock shall be combined or consolidated, by reclassification, reverse stock
split or otherwise, into a lesser number of shares of Common Stock, then
the Series H Conversion Price in effect immediately prior to such event
shall, concurrently with the effectiveness of such event, be
proportionately decreased or increased, as appropriate. In the event that
the Corporation shall declare or pay, without consideration, any dividend
on the shares of Common Stock payable in any right to acquire Common Stock
for no consideration, then the Corporation shall be deemed to have made a
dividend payable in shares of Common Stock in an amount of shares equal to
the maximum number of shares issuable upon exercise of such rights to
acquire shares of Common Stock.
(2) ISSUANCE OF ADDITIONAL SHARES. If at any time after
the Original Issuance Date and while there are any shares of Series H
Preferred Stock outstanding, the Corporation shall issue or sell Additional
Shares of Common Stock at a Price Per Share less than the Series H
Conversion Price in effect immediately prior to such issuance or sale, then
the Series H Conversion Price then in effect shall be adjusted to an amount
determined by multiplying the Series H Conversion Price in effect
immediately prior to the new issuance by a fraction,
(A) the numerator of which is equal to the sum of (x) the number
of shares of Outstanding Common Stock immediately prior to the issuance of
such Additional Shares, and (y) the amount determined by (i) dividing the
aggregate consideration received by the Corporation upon the issuance of
such Additional Shares, by (ii) the Series H Conversion Price in effect
immediately prior to the issuance of the Additional Shares, and
(B) the denominator of which is the number of shares of
Outstanding Common Stock immediately after the issuance of such Additional
Shares.
For the purposes of this Section 4(c)(ii), the issuance of any
Convertible Securities shall be deemed an issuance at such time of the
Common Stock issuable upon exercise, conversion, or exchange of the such
Convertible Securities if the Price Per Share shall be less than the Series
H Conversion Price in effect at the time of such issuance. No adjustment
of the Series H Conversion Price shall be made under this Section 4(c)(ii)
upon the issuance of any shares of Common Stock which are issued pursuant
to the exercise, conversion, or exchange of any Convertible Securities if
any adjustment shall previously have been made upon the issuance of any
such Convertible Securities as above provided. Any adjustment of the
Series H Conversion Price made with respect to the issuance of Convertible
Securities shall be reversed if and when any such Convertible Securities
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expire or are canceled without being exercised, converted, or exchanged so
that the Series H Conversion Price in effect immediately upon such
cancellation or expiration shall be equal to the Series H Conversion Price
which would have been in effect had the expired or canceled Convertible
Securities never been issued (but any such reversal of an adjustment shall
only apply as to the portion of the Convertible Security which has expired
or been canceled), with such additional adjustments as would have been made
to the Series H Conversion Price which would have been in effect had such
expired or canceled Convertible Securities never been issued.
The provisions of this Section 4(c)(ii) shall not apply to any
issuance or distribution of Additional Shares if by reason of any other
provision of this Section 4 an adjustment of the Series H Conversion Price
results with respect to such issuance of Additional Shares or if the
holders of Series H Preferred Stock are entitled to receive a distribution
of such Additional Shares.
For purposes of this Section 4(c)(ii), the following definitions
apply:
"Additional Shares" shall mean shares of Common Stock (including Common
Stock deemed issued upon the issuance of Convertible Securities), other
than Excluded Additional Shares (the issuance of which shall not result in
any adjustment of the Series H Conversion Price).
"Convertible Securities" shall mean any securities (whether debt or equity)
issued by the Corporation which are exercisable, convertible, or
exchangeable into or for shares of Common Stock.
"Excluded Additional Shares" shall mean:
(1) Any Existing Securities, excluding any increase in the Common
Stock or Convertible Securities which may be issued pursuant to Existing
Securities as a result of any modifications or amendments to Existing
Securities occurring after the Original Issuance Date.
(2) Any Common Stock or Convertible Securities issued after the
Original Issuance Date to any employee, consultant, advisor, officer, or
director of the Corporation or any subsidiary thereof pursuant to any
incentive or compensation agreement, arrangement, or plan approved by the
Board of Directors.
(3) Any Common Stock issued in connection with any stock dividend on
the Common Stock which is also payable to the Series H Preferred Stock
pursuant to any provision of Section 4 hereof.
(4) Any Common Stock issued upon conversion of the Series H Preferred
Stock.
"Existing Securities" shall mean any Common Stock or Convertible Securities
issued with respect to any options, notes, rights, warrants, or other
securities of the Corporation outstanding as of the Original Issuance Date,
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and shall include all shares of Series H Preferred Stock issued as of the
Original Issuance Date.
"Outstanding Common Stock" shall mean all shares of Common Stock of the
Corporation outstanding (on a fully diluted basis) at the time of a
calculation under Section 4(c)(ii), assuming for this purpose that all
then-outstanding Convertible Securities are then deemed exercised,
converted, or exchanged into shares of Common Stock.
"Price Per Share" shall be determined as follows:
(1) In the case of an issuance of shares of Common Stock for cash,
the Price Per Share shall mean the per share cash consideration received by
the Corporation for such shares.
(2) The Price Per Share for purposes of Convertible Securities shall
mean the amount equal to the consideration received by the Corporation upon
the issuance of such Convertible Securities, plus the amount of
consideration payable to the Corporation upon exercise, conversion, or
exchange thereof, divided by the aggregate number of shares of Common Stock
that would be issued if all such Convertible Securities were exercised,
exchanged, or converted.
(3) The Price Per Share for purposes of Convertible Securities shall
be determined in each instance as of the date of issuance of the
Convertible Securities without giving effect to any possible future price
adjustments or rate adjustments pursuant to the provisions of such
Convertible Securities which may result from any adjustments in the Series
H Conversion Price pursuant to the provisions of this Section 4.
(4) If a part or all of the consideration received by the Corporation
in connection with the issuance of securities consists of property other
than cash, the value of such consideration shall be the fair market value
of such property as determined by the Board of Directors in good faith.
(d) OTHER DISTRIBUTIONS. In the event the Corporation shall declare
a distribution payable in securities of other persons, in evidences of
indebtedness issued by the Corporation or other persons or in assets
(excluding cash dividends) or in rights not referred to in Section
4(c)(ii), then, in each such case for the purpose of this Section 4(d), the
holders of Series H Preferred Stock shall be entitled to a proportionate
share of any such distribution as though they were the holders of the
number of shares of Common Stock of the Corporation into which their shares
of Series H Preferred Stock are convertible as of the record date fixed for
the determination of the holders of Common Stock of the Corporation
entitled to receive such a distribution.
(e) RECAPITALIZATIONS. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision,
combination or reclassification) provision shall be made so that the
holders of Series H Preferred Stock shall thereafter be entitled to
receive, upon conversion of their Series H Preferred Stock, the number of
shares of stock or other securities or property of the Corporation, or
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otherwise, to which a holder of Common Stock deliverable upon conversion
would have been entitled in such recapitalization as if converted
immediately prior to such recapitalization. In any such case, appropriate
adjustment shall be made in the application of the provisions of this
Section 4 with respect to the rights of the holders of Series H Preferred
Stock after the recapitalization to the end that the provisions of this
Section 4 (including adjustment of the Series H Conversion Price, if
applicable, then in effect and the number of shares receivable upon
conversion of Series H Preferred Stock) shall be applicable after that
event as nearly equivalent as may be practicable.
(f) NO IMPAIRMENT. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Corporation, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 4 and in
the taking of all such action as may be necessary or appropriate in order
to protect the Conversion Rights of the holders of the Series H Preferred
Stock against impairment.
(g) FRACTIONAL SHARES AND CERTIFICATE AS TO ADJUSTMENTS.
(i) No fractional shares shall be issued upon conversion of the
Series H Preferred Stock pursuant to the provisions of this Section 4. In
lieu of fractional shares, the Corporation shall pay in cash the fair
market value of any fractional shares as determined by the Board of
Directors in good faith. The determination of the fractional shares for
which a cash payment will be made shall be determined on the basis of the
total number of shares of the Series H Preferred Stock the holder is at the
time converting into Common Stock and the number of shares of Common Stock
issuable upon such aggregate conversion. (ii) Upon the
occurrence of each adjustment or readjustment of the Series H Conversion
Price pursuant to this Section 4, the Corporation, at its expense, shall
within a reasonable time compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to each holder of
Series H Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, within a reasonable time
following a written request of any holder of Series H Preferred Stock,
furnish or cause to be furnished to such holder a like certificate setting
forth (A) such adjustment and readjustment, (B) the Series H Conversion
Price at the time in effect, and (C) the number of shares of Common Stock
and the amount, if any, of other property which at the time would be
received upon the conversion of a share of Series H Preferred Stock.
(h) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation
shall at all times reserve and keep available out of its authorized but
unissued shares of Common Stock solely for the purpose of effecting the
conversion of the shares of Series H Preferred Stock such number of its
shares of Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding shares of Series H Preferred Stock; and
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if at any time the number of authorized but unissued shares of Common Stock
shall not be sufficient to effect the conversion of all of the then
outstanding shares of Series H Preferred Stock, in addition to such other
remedies as shall be available to the holder of such Series H Preferred
Stock, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be
sufficient for such purposes.
(i) NO MINOR ADJUSTMENTS TO SERIES H CONVERSION PRICE. No adjustment
of the Series H Conversion Price shall be made pursuant to this Section 4
in an amount less than one cent ($.01) per share. Adjustment amounts under
one cent ($.01) per share shall be carried forward and taken into account
in any subsequent adjustment calculations.
5. NOTICES.
(a) REQUIRED NOTICES.
(i) In the event of any taking by the Corporation of a
record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend
(other than a cash dividend) or other distribution, any right to subscribe
for, purchase or otherwise acquire any shares of stock of any class or any
other securities or property, or to receive any other right; the
Corporation shall mail to each holder of Series H Preferred Stock, at least
thirty (30) days prior to the date specified therein, a notice specifying
the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, and the amount and character of such
dividend, distribution or right.
(ii) The Corporation shall give each holder of record of
Series H Preferred Stock written notice of any impending Reorganization
Transaction not later than thirty (30) days prior to the stockholders'
meeting called to approve such transaction, or thirty (30) days prior to
the closing of any such Reorganization Transaction, whichever is earlier.
Such notice shall describe the material terms and conditions of the
impending Reorganization Transaction, describe the consideration per share
to be received by the holders of the Common Stock and by the holders of the
Series H Preferred Stock as a result of such Reorganization Transaction,
and the date upon which the conversion rights of the Series H Preferred
Stock terminate in connection with such Reorganization Transaction, and the
Corporation shall thereafter give such holders prompt notice of any
material changes in the information contained in such notice.
(b) NOTICE PROCEDURES. Any notice required by the provisions of
this Section 5 to be given to a holder of shares of Series H Preferred
Stock shall be given in writing and shall be deemed given if addressed to
the holder of record of such shares at such holder's address appearing on
the books of the Corporation or such other address given in writing by the
holder to the Corporation for the purpose of notice and deposited in the
United States mail, postage prepaid, or with a courier which guaranteed
delivery of the notice within three business days after deposit with such
courier, and in either case, such notice shall be deemed given on the third
business day after such deposit.
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6. VOTING RIGHTS. The holder of each share of Series H Preferred
Stock shall have the right to one vote for each share of Common Stock into
which such Series H Preferred Stock could then be converted (with any
fractional share determined on an aggregate conversion basis being rounded
to the nearest whole share). Shares of Series H Preferred Stock shall have
full voting rights and powers equal to the voting rights and powers of the
holders of Common Stock, and shall be entitled, notwithstanding any
provision hereof, to notice of any stockholders' meeting in accordance with
the bylaws of the Corporation. Subject to the provisions of Paragraph 7
below, Shares of Series H Preferred Stock shall vote with holders of Common
Stock as a single class with respect to any question upon which holders of
Common Stock have the right to vote; provided, however, that the holders of
Series H Preferred Stock will vote as a class on matters to which a class
vote is required under Delaware law.
7. RESTRICTIONS AND LIMITATIONS. Without the vote or written
consent of the holders of at least eighty percent (80%) of the then
outstanding shares of Series H Preferred Stock, the Corporation will not:
(a) Authorize or issue, or obligate itself to issue, any other
equity security (including any security convertible into or exercisable for
any equity security) senior to or at parity with the Series H Preferred
Stock as to dividend rights, redemption rights or liquidation preferences
or which have voting rights as to matters upon which the holders of Common
Stock are entitled to vote that provide for more votes in any such matters
than one vote for each share of Common Stock into which such equity
security could then be converted into Common Stock in accordance with the
conversion rights of such equity security;
(b) Amend its Certificate of Incorporation (including this
Certificate of Designations) if such amendment would adversely affect any
of the rights, preferences or privileges provided for therein or herein for
the benefit of the shares of Series H Preferred Stock; or
(c) Engage in a Reorganization Transaction that would adversely
affect any of the rights, preferences or privileges of the Series H
Preferred Stock.
8. STATUS OF CONVERTED STOCK. In the event any shares of Series H
Preferred Stock shall be converted pursuant to Section 4 hereof, or are
otherwise acquired by the Corporation, the shares so converted or acquired
shall resume the status of authorized but unissued shares of Series H
Preferred Stock.
9. NO PREEMPTIVE RIGHTS. The holders of the Series H Preferred
Stock shall not have any preemptive rights.
10. SEVERABILITY OF PROVISIONS. Whenever possible, each provision
hereof shall be interpreted in a manner as to be effective an valid under
applicable law, but if any provision hereof should to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to
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the extent of such prohibition or invalidity, without invalidating or
otherwise adversely affecting the remaining provisions hereof.
IN WITNESS WHEREOF, this Certificate of Designations is executed on this
25th day of April, 1997.
AMERIQUEST TECHNOLOGIES, INC.
By:
Name:
Title:
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EXHIBIT B
[FORM OF OPINION OF COUNSEL TO THE COMPANY]
[Closing Date], 1997
Computer 2000, Inc.
c/o Computer 2000 AG
Wolfratshauser Strabe 84
D-81379 Munich
Federal Republic of Germany
Attention: Mr. Manfred Guenzel
Ladies and Gentlemen:
We have acted as special counsel to AmeriQuest Technologies, Inc., a
Delaware corporation (the "Company"), in connection with the purchase by
Computer 2000, Inc., a Delaware corporation ("C2000"), of 300,000 shares of
the Company's Series H Cumulative Convertible Preferred Stock (the
"Shares") pursuant to that certain Preferred Stock Purchase Agreement,
dated April 28, 1997 (the "Purchase Agreement"), by and between C2000 and
the Company. Capitalized terms not defined herein shall have the meanings
ascribed to them in the Purchase Agreement. We are rendering this opinion
to you pursuant to Section 4.4 of the Purchase Agreement.
In rendering this opinion, we have made such documentary, factual and
legal inquiries and examined, among other things, originals or copies,
certified or otherwise identified to our satisfaction, of such records,
agreements, certificates, instruments and other documents as we have
considered necessary or appropriate for purposes of this opinion. As to
certain factual matters, we have relied upon the representations and
warranties of the Company in the Purchase Agreement, certificates of
officers of the Company and certificates obtained from public officials.
We have assumed that the signatures on all documents examined by us
are genuine, all individuals executing such documents had all requisite
legal capacity and competency and (except in the case of the Company's
execution of the Purchase Agreement) were duly authorized to execute and
deliver such documents, the documents submitted to us as originals are
authentic and the documents submitted to us as certified or reproduction
copies conform to the originals.
Except as expressly stated otherwise herein, whenever an opinion
herein with respect to the existence or absence of facts is stated to be to
our knowledge, such statement is intended to signify that, during the
course of our representation of the Company, as herein described, no
information has come to the attention of Thomas D. Magill and John E.
Stoner that would give us actual knowledge of facts contrary to the
existence or absence of the facts indicated. However, we have not
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undertaken any independent investigation to determine the existence or
absence of such facts, and no inference as to our knowledge of the
existence or absence of such facts should be drawn from our representation
of the Company or any affiliate thereof.
Based on the foregoing and in reliance thereon, and also subject to
the assumptions, exceptions, qualifications and limitations set forth
herein, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. The Company
has the corporate power and authority to execute and deliver the Purchase
Agreement and to perform its obligations thereunder and to consummate the
transactions contemplated thereby, including without limitation to issue,
sell and deliver (pursuant to the Purchase Agreement) the Shares.
2. The execution and delivery by the Company of the Purchase
Agreement, and the performance by the Company of its obligations
thereunder, have been duly and validly authorized by all necessary
corporate actions on the part of the Company. Except as described in
Paragraph E below, no consent, approval or action of the Company's
stockholders is necessary in connection with the issuance or sale of the
Shares to Purchaser as contemplated in the Purchase Agreement. The
Purchase Agreement has been duly and validly executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
3. When issued in accordance with the terms of the Purchase
Agreement and after the Company's receipt of the payment therefor, the
Shares will be duly authorized, validly issued and outstanding, fully paid
and nonassessable. Subject to the stockholder approval required by
Section (B)(4)(a) of the Certificate of Designations, the shares of Common
Stock issuable upon conversion of the Shares in accordance with the terms
of the Certificate of Designations will be validly issued and outstanding,
fully paid and nonassessable.
4. To our knowledge, there are no actions or proceedings pending or
threatened relating to or affecting the Company or any of its assets, which
actions or proceedings question the legality or validity of the Purchase
Agreement or the transactions contemplated therein, or any action taken or
to be taken in connection therewith, or which seek to prevent the
consummation of any transaction contemplated thereby by restraining,
enjoining or otherwise prohibiting or making illegal the consummation of
any of the transactions contemplated therein. The foregoing opinions are
also subject to the following additional assumptions, exceptions,
qualifications and limitations:
5. As of the date on which the Shares are originally issued, C2000
shall have the right to one vote for each share of Common Stock into which
each Share could then be converted, notwithstanding the requirement that
the Company's stockholders must approve the issuance of the Common Stock
issuable upon conversion of the Shares.
The foregoing opinions are also subject to the following additional
assumptions, exceptions, qualifications and limitations:
A. We render no opinion herein as to matters involving the laws of
any jurisdiction other than (i) the Federal laws of the United States of
America, (ii) the laws of the State of California and (iii) to the limited
extent set forth below, the Delaware General Corporation Law. We are not
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admitted to practice law in the State of Delaware; however, we are
generally familiar with the Delaware General Corporation Law as presently
in effect and have made such inquiries as we consider necessary to render
our opinions set forth herein related to Delaware law. This opinion is
limited to the effect of the foregoing laws as they presently exist. We
assume no obligation to revise or supplement this opinion in the event of
future changes in such laws or the interpretations thereof or such facts.
B. We have assumed that C2000 has all requisite power and authority
to execute, deliver and perform its obligations under the Purchase
Agreement; the execution and delivery of the Purchase Agreement and the
performance of such obligations have been duly authorized by all necessary
action by C2000; and C2000 is acquiring the Shares purchased from the
Company in good faith.
C. Our opinion set forth in Paragraph 2 is subject to (i) the effect
of any bankruptcy, insolvency, reorganization, moratorium, arrangement or
similar laws affecting the enforcement of creditors' rights generally
(including without limitation the effect of statutory or other laws
regarding fraudulent transfers or preferential transfers or distributions
by corporations to stockholders) and (ii) general principles of equity,
including without limitation concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific
performance, injunctive relief or other equitable remedies, regardless of
whether enforceability is considered in a proceeding in equity or at law.
D. We express no opinion as to any provision of the Purchase
Agreement that purports to grant to C2000 a right to indemnity by the
Company for any breach of the Company's representations, warranties or
covenants contained in the Agreement.
E. The Company is required, pursuant to Section 312.03 of the New
York Stock Exchange ("NYSE") Listed Company Manual (the "Manual"), to
obtain stockholder approval prior to issuing the Shares. The NYSE has
indicated, pursuant to the letter attached hereto as Exhibit A, that the
Company may proceed with the issuance of the Shares prior to stockholder
approval provided such stockholder approval is a prerequisite to the
conversion of the Shares. Section (B)(4)(a) of the Certificate of
Designations, which establishes the conversion rights of the Shares,
expressly conditions the right to convert the Shares on obtaining the
required stockholder approval. No opinion is expressed herein as to the
NYSE's authority to grant such an exception or as to the NYSE's authority
to allow the Company to proceed without literal compliance with the terms
of the Manual.
F. Our opinion on Paragraph 5 assumes that (i) C2000 will be the
sole beneficial owner of the Shares on the date of issuance therof and (ii)
C2000 and any subsequent holder of the Sharese will abstain from voting the
Shares in the stockholder vote required pursuant to Section (B)(4)(a) of
the Certificate of Designations.
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This opinion is rendered to C2000 in connection with the Purchase
Agreement and may not be relied upon by any person other than C2000 or by
C2000 in any other context, provided that C2000 may provide this opinion
(i) to its independent auditors and attorneys, (ii) pursuant to order or
legal process of any court or governmental agency and (iii) in connection
with any legal action to which C2000 a party arising out of the
transactions contemplated by the Purchase Agreement. This opinion may not
be quoted without the prior written consent of this Firm.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
PAGE 64 OF 64 PAGES - EXHIBIT K
