As filed with the Securities and Exchange Commission on June 24, 1996
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------
Ampex Corporation
(Exact name of Registrant as specified in its charter)
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Delaware 13-3667696
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) I.D. Number)
500 Broadway
Redwood City, CA 94063-3199
(415) 367-2011
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
JOEL D. TALCOTT, Esq.
500 Broadway
Redwood City, CA 94063
(415) 367-3330
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
DAVID D. GRIFFIN, Esq.
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
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Approximate date of commencement of proposed sale to public: From time to
time following the effectiveness of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Offering Price Aggregate Amount of
Registered Amount to be Registered Per Share(1) Offering Price(1) Registration Fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 271,830 shares $9.84 $2,674,808 $923
$.01 par value
=============================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c), based upon the average of the high and low
prices of the Common Stock on June 20, 1996, as reported on the American
Stock Exchange.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
372811.4
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell, or the
solicitation of an offer to buy, nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PROSPECTUS
Subject to Completion, dated June 24, 1996
Class A Common Stock
Ampex Corporation
-------------------------------
This Prospectus relates to the public offering and sale by certain
holders (the "Selling Stockholders") of up to 271,830 shares of Class A Common
Stock, par value $.01 per share ("Common Stock") of Ampex Corporation, a
Delaware corporation ("Ampex" or the "Company"). The shares of Common Stock are
being offered from time to time for the accounts of the Selling Stockholders;
the information shown relates to shares of Common Stock held by the Selling
Stockholders as of June 20, 1996. The Company will not receive any cash proceeds
from the sale of the shares of Common Stock by Selling Stockholders. See
"Selling Stockholders."
The Common Stock is traded on the American Stock Exchange under the
symbol "AXC." On June 20, 1996, the closing sale price of the Common Stock on
the American Stock Exchange was $9.94 per share. For a complete description of
the terms of the Common Stock, see "Description of Capital Stock."
-------------------------------
See "Risk Factors" commencing on page 4 for
certain factors that should be
considered by prospective investors.
-------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
-------------------------------
The date of this Prospectus is June , 1996
372811.4
<PAGE>
SALES AND OFFERS TO SELL THE SECURITIES DESCRIBED HEREIN MAY NOT BE MADE BY ANY
SELLING SECURITYHOLDER WITHOUT COMPLIANCE WITH THE SECURITIES LAWS, INCLUDING
THE LAWS GOVERNING BROKERS AND DEALERS, OF EACH JURISDICTION IN WHICH SUCH SALE
OR OFFER TO SELL MAY BE DEEMED TO HAVE OCCURRED. SELLING STOCKHOLDERS ARE
ADVISED TO CONSULT WITH COUNSEL IN ORDER TO ESTABLISH COMPLIANCE WITH THE
RELEVANT STATE AND LOCAL SECURITIES LAWS.
It is not possible at the present time to determine the price to the
public in any sale of Common Stock by Selling Stockholders, and each Selling
Stockholder reserves the sole right to accept or reject, in whole or in part,
any proposed purchase of Common Stock. Accordingly, the public offering price
and the amount of any applicable underwriting discounts and commissions will be
determined at the time of such sale by Selling Stockholders. To the extent
required, the specific shares to be sold, the names of the Selling Stockholders,
the public offering price, the names of any agent, dealer or underwriter, and
any applicable commissions or discounts with respect to a particular offer will
be set forth in an accompanying Prospectus Supplement or, if appropriate, a
post-effective amendment to the Registration Statement of which this Prospectus
is a part. The aggregate proceeds to the Selling Stockholders from the sale of
the Common Stock will be the purchase price of the Common Stock sold less all
applicable commissions and underwriters' discounts, if any, and other expenses
of issuance and distribution not borne by the Company. By agreement, the Company
will pay substantially all of the expenses of the offering of the Common Stock
by Selling Stockholders other than underwriting fees, discounts and commissions.
No dealer, salesman or any other person has been authorized to give any
information or to make any representations not contained in this Prospectus,
and, if given or made, such information or representations must not be relied
upon as having been authorized by the Company. This Prospectus does not
constitute an offer to sell, or solicitation of an offer to buy, to any person
in any jurisdiction where such an offer or solicitation would be unlawful.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that the information contained herein
is correct as of any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy and information
statements and other information filed with the Commission by the Company can be
inspected and copied at the public reference facilities maintained by the
Commission, located at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549; and at the Commission's Regional Offices, located at 7
World Trade Center, Suite 1300, New York, New York 10048, and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of all
or any part of such materials also may be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, such reports and other information may be
inspected at the offices of the American Stock Exchange, 86 Trinity Place, New
York, New York 10006-1881.
Pursuant to the Securities Act of 1933, as amended (the "Securities Act")
and the rules and regulations promulgated thereunder, the Company has filed with
the Commission a Registration Statement on Form S-3 covering the Common Stock
being offered hereunder (the "Registration Statement," which term includes this
Prospectus and all amendments, supplements, exhibits, annexes and schedules to
the Registration Statement). This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted as permitted by the rules and regulations of the Commission. Statements
made in this Prospectus as to the contents of any contract, agreement or other
document are not necessarily complete. With respect to each such contract,
agreement or other document filed as an exhibit to the Registration Statement,
reference is hereby made to such exhibit for a more complete description of the
matter involved, and each such statement shall be qualified in its entirety by
such reference.
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372811.4
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission (File
No. 0-20292) pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996.
3. The Company's Current Report on Form 8-K filed on February 5,
1996.
4. The Company's definitive proxy statement dated April 23, 1996
relating to its annual meeting of stockholders held on June 7,
1996.
5. The Company's Registration Statement on Form 8-A filed with the
Commission on January 16, 1996.
In addition, all reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Prospectus and prior to the termination of the offering of the
Common Stock shall be deemed to be incorporated by reference in this Prospectus
from the date of filing such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any and all of the documents that are
incorporated herein by reference (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into such documents).
Such requests should be directed to Ampex Corporation, 500 Broadway, Redwood
City, California 94063-3199, Attention: Investor Relations, (415) 367-4111.
THE COMPANY
The names "Ampex," "DCT," "DST," "DIS" and "DCRsi" are trademarks of
Ampex Corporation.
Ampex is one of the world's leading innovators in the fields of magnetic
recording, digital image processing and high-performance digital storage for the
visual information age. In recent years, the Company has directed substantial
resources to developing products for the emerging commercial mass data storage
market, which the Company believes offers significant growth opportunities. As a
result of the increasing convergence of computing, entertainment and
communications technologies, the Company believes there is a growing demand for
high-speed, cost-effective mass data storage, especially for visual information.
Ampex provides data storage solutions that serve a wide range of customer needs,
from scientific and technical applications such as aerospace testing and oil
exploration to entertainment and education applications.
The Company's principal products are its DST(R) tape drives and robotic
library systems for computer mass storage, its DCRsi(TM) and DIS(TM)
instrumentation recorders, and its DCT(R) professional video recorders and image
processing systems. The Company's DST products for the mass data storage market
offer superior data access times, rapid data transfer rates and extremely low
cost per megabyte of storage. Ampex DCRsi instrumentation recorders are designed
for demanding aeronautical applications such as commercial and military flight
testing, as well as other applications involving comparable data-gathering
challenges in extreme environments. Ampex DIS instrumentation recorders allow
users to record instrumentation data on DST tape cartridges, so that the data
can
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372811.4
<PAGE>
be used in a computer environment as well as an instrumentation environment. The
Company's DCT video recording products have been developed for high-end digital
component recording applications in entertainment and imaging markets.
During its 52-year history, Ampex has developed extensive technical
expertise in the storage, processing and retrieval of digital images. The
Company commits substantial resources to the research, development and
engineering of new products that capitalize on its knowledge, experience and
patent portfolio. As an example of this strategy, since the last quarter of 1994
the Company has been exploring the feasibility of commercializing its patented
"keepered media" technology. This project, which is still in the research and
development stage, has the potential to significantly increase the capacity of
hard disk drives with nominal incremental cost. At present, there can be no
assurance that the keepered media program, or any other efforts by the Company
to develop new products from its intellectual property portfolio, will be a
commercial or technical success. See "Risk Factors -- Uncertainty as to
Commercialization of Keepered Media" and "-- Rapid Technological Change and
Risks of New Product Development."
The Company recently filed a shelf registration statement with the
Commission covering 1,150,000 shares of Common Stock which may be offered from
time to time by the Company, the proceeds of which would be used for general
corporate purposes, including, if required, the acquisition of specialized
production and testing equipment for use in the Company's keepered media
research and development program. See "Risk Factors -- Volatility of Common
Stock" and "-- Uncertainty as to Commercialization of Keepered Media."
The Company was incorporated in Delaware in January 1992 as the successor
to a business originally organized in 1944. References to "Ampex" or the
"Company" include subsidiaries of Ampex Corporation, unless the context
indicates otherwise. The principal executive offices of the Company are located
at 500 Broadway, Redwood City, California 94063, and its telephone number is
(415) 367-2011. The Company's Class A Common Stock is traded on the American
Stock Exchange under the symbol "AXC".
Except for historical information contained herein, this Prospectus
contains or incorporates forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995 which involve certain risks and
uncertainties. The Company's actual results or outcomes may differ materially
from those anticipated. Important factors that the Company believes might cause
such differences are discussed in this Prospectus under the caption "Risk
Factors" and in the Company's other documents filed with the Securities and
Exchange Commission, whether or not such documents are incorporated herein by
reference. In assessing these forward-looking statements, readers are urged to
read all cautionary statements carefully.
RISK FACTORS
Investment in the Common Stock offered hereby involves a significant
degree of risk. Prospective investors should carefully consider the following
factors, together with the other information included or incorporated by
reference in this Prospectus, in evaluating the Company and its business before
purchasing the Common Stock offered hereby.
Historical Losses; Impact of Restructuring. As a result of substantial
net losses incurred by the Company in each of the years 1990 to 1993, primarily
in its professional television products business, the Company significantly
restructured its business operations in 1993. The restructuring involved changes
in manufacturing, distribution and administration to reduce fixed costs,
withdrawal from or curtailment of a number of unprofitable product lines, and
the write-off of goodwill and other intangible assets associated with its
television products business. As a result of substantial restructuring charges
and operating losses during this period, including a $230.5 million charge in
1993, the Company had a stockholders' deficit of $100.2 million as of March 31,
1996. Although the Company has generated operating and net income in the fiscal
years since 1993, as a result of its decision to narrow its product lines, the
Company's total sales have declined significantly in comparison to prior
periods. In addition, since the
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372811.4
<PAGE>
restructuring, the Company's revenues have depended to a greater degree on new
products which may have higher technological and other risks. See "Rapid
Technological Change and Risks of New Product Development." There is no
assurance as to future sales levels or operating results.
Fluctuations In Operating Results. Ampex's sales and results of
operations are generally subject to quarterly fluctuations. Factors affecting
operating results include: customer ordering patterns; availability of, and
market acceptance of, new products; timing of significant orders and new product
announcements; order cancellations; receipt of royalty income; and numerous
other factors. Accordingly, results of a given quarter or year are not
necessarily indicative of results to be expected for future periods. In
addition, the Company's entrance into new businesses since 1993 may have made
its future revenues and operating results more difficult to predict than in
prior periods.
Seasonality; Backlog. Sales of most of the Company's products have
historically declined during the third quarter of its fiscal year, due to
seasonal procurement practices of its customers. Although sales in the third
quarter of 1995 did not decline materially relative to prior quarters of that
year, prospective investors should be aware that such a decline may occur in the
third quarter of 1996. A substantial portion of the Company's backlog at a given
time is normally shipped within one or two quarters thereafter. Therefore, sales
in any quarter are heavily dependent on orders received in that quarter and the
immediately preceding quarter. The Company's backlog of firms orders at March
31, 1996 was $9.7 million, as compared to $13.8 million at December 31, 1995,
and there can be no assurance as to the level of sales that will be attained in
future quarters.
Fluctuating Royalty Income. Ampex's results of operations in certain
prior fiscal periods reflect the receipt of substantial royalty income,
including material non-recurring payments resulting from negotiated settlements
of patent infringement claims asserted by the Company. Although Ampex has a
substantial number of outstanding and pending patents, and the Company's patents
have generated substantial royalties in the past, it is not possible to predict
the amount of royalty income that will be received in the future. Royalty income
can fluctuate dramatically depending on a number of factors that the Company
cannot predict, such as the extent of use of the Company's patented technology
by third parties, the extent to which the Company must pursue litigation in
order to enforce its patents and the ultimate success of its licensing and
litigation activities. The costs of patent litigation, such as the Company's
current lawsuit against a foreign manufacturer of VHS video recorders, can be
material, and the institution of patent enforcement litigation may also increase
the risk of counterclaims alleging infringement by the Company of patents held
by third parties or seeking to invalidate patents held by the Company. Moreover,
there is no assurance that the Company will continue to develop patentable
technology that will generate significant patent royalties in future years.
Ampex's royalty income fluctuates significantly from quarter to quarter and from
year to year, and there can be no assurance as to the level of royalty income
which will be realized in future periods.
Risk of Declines in Government Sales. Ampex sales to U.S. and foreign
government agencies (directly and through government contractors), principally
of instrumentation recorders, are material to its results of operations. Sales
to government customers are subject to fluctuation as a result of changes in
government spending programs. Sales of the Company's DCRsi instrumentation
recorders have recently declined, reflecting lower sales to the federal
government. Any further material decline in the level of government purchases of
the Company's products could have a material adverse effect on the Company. The
Company is unable to forecast the extent to which sales may be adversely
affected in future periods by continued pressure on government agencies to
reduce spending, particularly amounts related to defense programs.
Possible Disruptions of Manufacturing and Engineering Operations. In
connection with the recent sale of its Redwood City, California property, Ampex
is relocating its manufacturing and engineering operations to a smaller facility
located on a portion of the property which it leased back at the time of sale.
Ampex is also consolidating its Colorado Springs, Colorado manufacturing
facilities, following the sale in May 1996 of a portion of those facilities. In
addition to the normal risks of fire, earthquake, materials shortages and other
similar events, relocation or consolidation of key manufacturing and engineering
facilities entails the risks of disruption or delays
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372811.4
<PAGE>
in operations, which could temporarily adversely impact sales revenues or
profitability or result in the incurrence of unanticipated expenses. In order to
minimize, in part, the effect of any potential disruption, the Company has
recently been building inventories of its products, including the DST 810
library system which it expects to begin shipping in the second half of 1996. If
such increased inventories exceed orders actually received, the Company's
earnings could be adversely affected by any write-down or write-offs that may be
required. The Company maintains insurance, including business interruption
insurance, covering certain risks. However, there can be no assurance that the
Company will not incur losses beyond the limits of, or outside the coverage of,
its insurance.
Rapid Technological Change and Risks of New Product Development. The data
storage, instrumentation and video recording industries are characterized by
continual technological change and the need to introduce new products and
product upgrades, requiring a high level of expenditure for research and
development. No assurance can be given that the Company's existing products will
not become obsolete, that any new products will win commercial acceptance or
that Ampex's new products or technology will be competitive. Obsolescence of
existing product lines, or inability to develop and introduce new products,
could have a material adverse effect on sales and results of operations in the
future. In addition, broad-based acceptance of the Company's DST products will
depend to some extent on the availability and performance of certain
applications software being developed by the Company and independent commercial
software developers. During the first quarter of 1996, the Company announced
that its DST 310 tape drive and DST 410 library are now supported by certain
third party hierarchical storage management and UNIX file system backup software
packages. However, support for the DST 810 library, upon which the Company
believes that increased sales of DST products will depend, is not expected to be
available until late in 1996, and the currently available third party software
runs on only a limited number of UNIX workstations.
Competition. Ampex encounters significant competition in all its product
markets. Ampex competes in the mass data storage market with a number of
well-established competitors, such as IBM, Storage Technology Corporation,
Exabyte Corporation and Quantum Corporation, as well as smaller companies. In
addition, other manufacturers of scanning video recorders may seek to enter the
mass data storage market in competition with the Company. For example, in 1995
Sony Corporation entered this market with storage products based on its video
recording technology. In addition, price declines in competitive storage
systems, such as magnetic or optical disk drives, can negatively impact the
Company's sales of its DST products. In the instrumentation market, the Company
competes primarily with companies that depend on government contracts for a
major portion of their sales in this market, including Sony Corporation, Loral
Data Systems, Datatape Incorporated and Metrum Incorporated. The number of
competitors in this market has decreased in recent years as the level of
government spending in many areas has declined. In the professional video
recorder market, Sony and Panasonic are the leading competitors of the Company.
There is no assurance that the Company will be able to compete successfully in
these markets in the future.
Dependence On Certain Suppliers. Ampex purchases certain components, such
as customized integrated circuits, from a single domestic or foreign
manufacturer. Significant delays in deliveries or defects in such components
could adversely affect Ampex's manufacturing operations, pending qualification
of an alternative supplier. In addition, the Company produces highly engineered
products in relatively small quantities. As a result, its ability to cause
suppliers to continue production of certain products on which the Company may
depend may be limited. The Company does not generally enter into long-term raw
materials or components supply contracts.
Risks Related to International Operations. Although the Company
significantly curtailed its international operations in connection with the
restructuring of its operations in 1993, sales to foreign customers (including
U.S. export sales) continue to be significant to the Company's results of
operations. International operations are subject to a number of special risks,
including limitations on repatriation of earnings, restrictive actions by local
governments, fluctuations in foreign currency exchange rates and
nationalization. Additionally, export sales are subject to export regulation and
restrictions imposed by U.S. government agencies. Fluctuations in the value of
foreign currencies can affect Ampex's results of operations. The Company does
not normally seek to mitigate its exposure to exchange rate fluctuations by
hedging its foreign currency positions.
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Dependence On Key Employees. The Company is dependent upon the
performance of certain key members of management and key technical personnel.
The Company has not entered into employment agreements with any such persons.
Edward J. Bramson, who since January 1991 has served as chief executive of the
Company, is also engaged in the management of certain companies affiliated with
Sherborne Holdings Incorporated, a privately owned Delaware holding company
("SHI"). Mr. Bramson currently devotes most of his time to the management of the
Company. The loss of the services of Mr. Bramson and/or such managers or other
key personnel could have a material adverse effect on the Company.
Anti-Takeover Consequences of Certain Governing Instruments. The
Company's Certificate of Incorporation provides for a classified Board of
Directors, with members of each class elected for a three-year term. The
Certificate of Incorporation provides for nullification of voting rights of
certain foreign stockholders in certain circumstances involving possible
violations of security regulations of the United States Department of Defense.
The instruments governing the Company's outstanding Noncumulative Preferred
Stock require mandatory offers by the Company to redeem such securities in the
event of a Change of Control (as defined). The Certificate of Incorporation
authorizes the Board of Directors of the Company to issue additional shares of
Preferred Stock without the vote of stockholders. Such provisions could have
anti-takeover effects by making an acquisition of the Company by a third party
more difficult or expensive in certain circumstances.
Non-payment of Dividends. The Company has not declared dividends on its
Common Stock since its incorporation in 1992 and has no present intention of
paying dividends on its Common Stock. The Company is also restricted by the
terms of certain agreements and of its outstanding Noncumulative Preferred Stock
as to the declaration of dividends.
Redemption of Preferred Stock. In December, 1997, the Company is
scheduled to redeem its outstanding Noncumulative Preferred Stock, having a
redemption price of approximately $70 million, out of funds legally available
therefor (which, in general, means the excess of the fair value of assets over
liabilities of the Company). In certain circumstances the Company may redeem the
Noncumulative Preferred Stock by issuing Common Stock at 90% of fair market
value. As of March 31, 1996, the Company did not have sufficient funds legally
available to redeem the Noncumulative Preferred Stock in full. In the event the
Company does not have sufficient funds legally available to redeem the
Noncumulative Preferred Stock in full on the redemption date, the Company would
remain obligated to redeem such shares from time to time to the extent funds
become legally available for redemption, and would generally be precluded from
declaring cash dividends on, or repurchasing shares of, its Common Stock, until
the Noncumulative Preferred Stock has been redeemed in full. There can be no
assurance the Company will have adequate liquidity or have funds legally
available to redeem the Noncumulative Preferred Stock. Although the Company has
no current plans for redemption of the Noncumulative Preferred Stock prior to
1997, it will continue to evaluate this possibility in light of market
conditions, its liquidity, and other factors. Any such redemption could involve
the issuance of additional debt or equity securities or other actions that might
result in dilution of current stockholders' equity interests in the Company or
adversely affect the market price of the Common Stock.
Volatility of Stock Price. The trading price of the Company's Common
Stock has been and can be expected to be subject to significant volatility,
reflecting a variety of factors, including quarterly variations in operating
results, new product introductions by the Company or its competitors, reports
and predictions concerning the Company by analysts and other members of the
media, announcements of plans to issue new equity or debt securities by the
Company, and general economic or market conditions. The stock market in general
and technology companies in particular have experienced a high degree of price
volatility, which has had a substantial effect on the market prices of many
technology companies for reasons that often are unrelated or disproportionate to
operating performance. In addition, the sale, or the offer for sale, of
substantial numbers of the shares of the Common Stock covered by this Prospectus
could adversely affect the market price for the Common Stock.
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Uncertainty as to Commercialization of Keepered Media. The successful
commercialization of the Company's proprietary keepered media technology, which
potentially could increase the storage capacity of hard disk drives used in most
personal computers, involves a number of risks. Ampex is currently engaged in
research and development testing and it is impossible to predict if, or when,
keepered media technology will be adopted by any potential customer. The Company
has not had any substantive discussions with any hard disk drive maker relating
to potential purchases of keepered media or other commercial arrangements. While
the Company has completed some preliminary testing of keepered media, additional
testing could yield results that are significantly different from results
obtained to date. The Company does not presently have manufacturing facilities
suitable for producing keepered media in quantity, and the Company does not
presently intend to license the technology to third parties. Although the
Company has held discussions with several U.S. and foreign producers of disk
drive platters concerning the supply of such platters to Ampex for resale to
hard disk drive manufacturers, no commitments with respect to availability,
price or other terms have been made by such platter manufacturers. If the
Company continues its development program for keepered media, increased expenses
could negatively affect its earnings with no certainty of a financial return. If
the Company commences commercial production, capital requirements could be
significant and the Company would probably be required to issue debt or equity
securities, which would increase the Company's financial leverage or dilute
earnings. It is not possible currently to predict whether keepered media disks
can be made economically and in quantity or if their durability or other
characteristics will prove acceptable. It is also possible that further analysis
by the Company, or by potential customers, will identify technical or economic
issues of which Ampex, at present, is unaware. Ampex is familiar with at least
two other technologies - magneto-resistive heads and contact recording - that
potential customers might prefer over keepered media. In a high technology
industry such as data storage, other technology may be under development, or may
be developed in the future, that could be technically or economically superior
to keepered media. In view of the uncertainties associated with the development
and commercialization of keepered media, some of which are described above, it
is impossible to forecast when, or if, any commercial benefit will be realized
by the Company. Since prospects for keepered media are highly speculative, there
is a material risk that the market price of the Company's securities may
experience increased volatility, in addition to volatility that may result from
factors discussed above under "Volatility of Stock Price."
USE OF PROCEEDS
There will be no cash proceeds to the Company from the sale of the Common
Stock offered hereby. The proceeds to any Selling Stockholder from the sale of
Common Stock will be determined at the time of sale. See "Selling Stockholders"
and "Plan of Distribution."
DESCRIPTION OF CAPITAL STOCK
The following description is a summary of certain provisions with respect
to the Company's Capital Stock contained in the Company's Certificate of
Incorporation and By-Laws. Such summary is qualified in its entirety by
reference to the more detailed provisions of such documents, copies of which are
filed or incorporated by reference as exhibits to the Registration Statement of
which this Prospectus is a part.
General
The Company's authorized capital stock consists of (i) 175,000,000 shares
of Common Stock, par value $0.01 per share, of which 125,000,000 shares are
designated as Class A Stock, and 50,000,000 shares are designated as Class C
Stock; and (ii) 1,000,000 shares of Preferred Stock, par value $1.00 per share
(the "Preferred Stock"), of which 69,970 shares have been designated as the "8%
Noncumulative Preferred Stock" (the "Noncumulative Preferred Stock") and 87,192
shares were formerly designated as "8% Step-Up Rate Cumulative Convertible
Preferred Stock", which have been cancelled and retired. As of June 20, 1996,
569 shares of Class C Stock were outstanding.
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<PAGE>
Common Stock
Dividends. Subject to preferences which may be granted to holders of
Preferred Stock, and the restrictions contained in the Certificate of
Designations, holders of Common Stock are entitled to receive such dividends as
may be declared by the Board of Directors out of funds legally available for
such purpose. Nevertheless, no dividend may be declared or paid in cash or
property on any share of Class A Stock or Class C Stock, unless the same
dividend is simultaneously declared or paid on each share of Class A Stock and
each share of Class C Stock. In the case of any stock dividend, holders of each
class of Common Stock are entitled to receive the same ratable dividend. Such
dividends will be payable to the holders of Class A Stock in shares of Class A
Stock and to the holders of Class C Stock in shares of Class C Stock.
Liquidation Rights. Subject to preferences that may be granted to holders
of Preferred Stock, upon liquidation, dissolution or winding-up of the Company,
the holders of all classes of Common Stock shall be entitled to share ratably,
in accordance with the number of shares of Common Stock held by each such
holder, in all assets available for distribution to stockholders after payment
of creditors.
Voting Rights. Holders of Class A Stock are entitled to one vote for each
share held of record on matters submitted to a vote of stockholders. Subject to
the voting rights of any outstanding shares of Preferred Stock, approval of
matters brought before the stockholders requires the affirmative vote of a
majority of shares of Class A Stock, except that the affirmative vote of the
holders of at least 80% of the outstanding shares of voting Common Stock is
required in order to amend or repeal: (i) the provisions relating to
classification of the Board, removal and number of directors and the 80% voting
requirement in such instances; (ii) the provisions described below under
"Directors' and Officers' Liability;" and (iii) as otherwise required by law.
Under Delaware law, the affirmative vote of the holders of a majority of
outstanding shares of any class of Common Stock is required to approve, among
other things, any adverse change in the powers, preferences or special rights of
the shares of such class. The number of authorized shares of Class A Stock,
Class C Stock and Preferred Stock may be increased or decreased (but not below
the number of shares then outstanding) by the affirmative vote of the holders of
a majority in voting power of the outstanding Class A Stock.
The holders of Class C Stock generally have no voting rights and the
Class C Stock is not included in determining the number of shares voting or
entitled to vote or consent on any matter. However, the affirmative vote of the
holders of a majority of the outstanding shares of Class C Stock, voting as a
separate class (with each share entitled to one vote), is required under
Delaware law for any amendment to, or modification or waiver of, the provisions
of the Certificate of Incorporation that would adversely alter, change or affect
the powers, preferences or rights of the Class C Stock.
Subject to the voting rights of the holders of any outstanding shares of
Preferred Stock, directors are elected by a plurality vote of the holders of
voting Common Stock, voting as a single class. The number of directors
constituting the whole Board is currently fixed at five, and may be increased or
decreased (but not below three) by resolution of the Board, but no such decrease
can shorten the term of any director then in office. Holders of Common Stock are
not entitled to cumulate votes in the election of directors. Director
nominations may be made by stockholders in accordance with the Company's
By-Laws, generally not less than 70 days or more than 90 days prior to the first
anniversary of the preceding year's Annual Meeting of Stockholders.
Classification of Directors. The Board of Directors is divided into three
classes, which need not be equal in number, designated Class I, Class II and
Class III, with terms expiring successively at each Annual Meeting of
Stockholders of the Company. At each Annual Meeting of Stockholders, the
successors to the Class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding Annual
Meeting of Stockholders. The Board of Directors, acting by a majority of the
directors then in office (although less than a quorum) or by a sole remaining
director, may fill vacancies and newly created directorships resulting from any
increase in the authorized number of directors, and may designate the class of
each director so chosen to fill
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<PAGE>
a newly created directorship resulting from any increase in the authorized
number of directors, and each director so chosen to fill a vacancy shall be a
member of the same class as the director being replaced.
Convertibility of Class C Stock. Each share of Class C Stock is
convertible into one share of Class A Stock automatically upon transfer, unless
the transferee elects not to have such Class C Stock convert into Class A Stock,
and such transferee notifies the Company of its election pursuant to the
procedures described in the Certificate of Incorporation. Shares of Class A
Stock are not convertible into shares of Class C Stock. Shares of Class C Stock
that have been converted into shares of Class A Stock may not thereafter be
exchanged for shares of Class C Stock.
Business Combinations. As preconditions to any proposed merger,
consolidation or business combination with SHI or any of its Affiliates, as
defined below (other than a merger, consolidation or business combination with
one or more wholly-owned subsidiaries of the Company in which the Company is the
surviving entity and in which no outstanding shares of Common Stock are
converted, exchanged or canceled), the directors of the Company who are
disinterested as to such transaction must (i) have been provided the right to
select and engage, at the Company's expense, legal, accounting and financial
advisers to assist them in the consideration of such transaction, (ii) have
received a letter of opinion from a qualified independent investment banker of
national reputation to the effect that the terms of such transaction are fair to
the holders of Class A Stock and the Class C Stock and (iii) have approved, by a
majority vote, the consummation of such transaction. In any merger,
consolidation or business combination, other than a merger, consolidation or
business combination to which the provisions described in the preceding sentence
apply, the consideration to be received per share by holders of Class A Stock
and Class C Stock must be identical, except that in any such transaction in
which shares of Common Stock are distributed, such shares may differ as to
voting and other special rights to the extent such rights now differ among the
classes of Common Stock. For purposes of the Certificate of Incorporation, an
"Affiliate" of any specified person or entity is any individual or entity that,
directly or indirectly, controls, is controlled by, or is under common control
with the specified person or entity (including, without limitation, any
investment partnership in which the specified person or entity is or becomes,
directly or indirectly, a general partner).
Nullification of Voting Rights of Certain Foreign Stockholders. The U.S.
Department of Defense ("DoD") has policies regarding foreign ownership, control
or influence over U.S. government contractors. These policies are designed to
protect against the risk to national security that may result if classified
information is made available to U.S. government contractors or subcontractors
who are owned, controlled or influenced by foreign governments, individuals or
organizations. These policies require the Company, as well as the DoD's other
contractors and subcontractors, to submit information that will assist the DoD
in determining whether the award or continued performance of a contract may pose
an undue risk to the common defense and security of the United States. One of
the DoD's areas of inquiry is whether any foreign interest has beneficial
ownership of 5% or more of a contractor's or subcontractor's voting securities.
If the DoD determines that an unacceptable level of foreign ownership, influence
or control would result in undue threat to the common defense and security of
the United States, it may, among other things, require specific mitigation of
such unacceptable foreign ownership, influence or control or, where such
mitigation cannot be achieved, terminate the contractor's or subcontractor's
existing contract with the DoD and preclude future contract awards. For this
reason, the Company's Certificate of Incorporation provides that with respect to
any foreign holder of Class A Stock identified by the DoD to be the subject of
any inquiry, investigation or other action that could adversely affect the
Company's security clearances, the voting rights of such holder shall be
nullified until the Company is notified by the DoD of its final determination
that such holder's ownership will not adversely affect the continuation of the
Company's facility security clearances. The Certificate of Incorporation also
contains provisions respecting notice to affected foreign holders of such vote
nullification and subsequent reinstatement.
Other Provisions. The holders of Common Stock have no preemptive or other
subscription rights by virtue of their ownership of Common Stock, nor are there
any redemption or sinking fund provisions with respect to any class of Common
Stock. No class of Common Stock may be subdivided, consolidated, reclassified or
otherwise changed unless each other class of Common Stock is subdivided,
consolidated, reclassified or otherwise changed in the same proportion and in
the same manner.
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<PAGE>
Preferred Stock
Designation of Series. Under its Certificate of Incorporation, the
Company has authority to issue up to 1,000,000 shares of Preferred Stock, par
value $1.00 per share, in one or more series as determined by the Company's
Board of Directors, each series to be appropriately designated by a
distinguishing number, letter or title, prior to the issue of any shares
thereof. The Board is authorized to fix or alter the divided rights, dividend
rate, conversion rights, voting rights, the rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, and the
liquidation preferences of any wholly unissued series of Preferred Stock, and
the amount of shares constituting any such series and the designation thereof,
or any of them; and to increase or decrease the number of shares of any series
subsequent to the issue of shares of that series, but not below the number of
shares of such series then outstanding. In case the number of shares of any
series shall be so decreased, the shares constituting such decrease shall resume
the status that they had prior to the adoption of the resolution originally
fixing the number of shares of such series. In April 1994, the Board authorized
the issuance of a series consisting of 87,192 shares of Convertible Preferred
Stock, designated as "8% Step-Up Rate Cumulative Convertible Preferred Stock."
Such shares were issued under a Certificate of Designations, Preferences and
Rights adopted by the Board and filed with the Secretary of State of the State
of Delaware on April 22, 1994. As of February 14, 1995, all of such 87,192
outstanding shares of convertible Preferred Stock were retired and cancelled in
exchange for the issuance of 69,970 shares of Noncumulative Preferred Stock,
1,225,216 of Class A Stock and 9,781,497 shares of Class C Stock. The issuance
of such shares of Noncumulative Preferred Stock was approved by the Board, and
such shares were issued under the Certificate of Designations adopted by the
Board and filed with the Secretary of State of the State of Delaware on February
16, 1995. The Company has no present plans to issue any additional shares of
Preferred Stock.
Voting Rights. Shares of Noncumulative Preferred Stock are non-voting
except as required by law or as specified in the Certificate of Designations.
Pursuant to the Certificate of Designations, the unanimous vote of the holders
of the Noncumulative Preferred Stock is required to change the liquidation
preference, dividend rate, calculation of dividends or to change certain
provisions relating to redemption. The vote of the holders of at least 51% of
the Noncumulative Preferred Stock is required to make any changes to the
Certificate of Incorporation or the Certificate of Designations that would
adversely affect the rights, preferences or voting powers of the holders of the
Noncumulative Preferred Stock, or to authorize, create or issue any stock that
is senior to or on a par with the Noncumulative Preferred Stock with respect to
dividends or liquidation rights.
Dividend Rights. The holders of Noncumulative Preferred Stock are
entitled to receive, when and as declared by the Board, in its sole discretion,
out of funds legally available therefor, dividends on the liquidation preference
at the annual rate of 8% until December 31, 1997. Such dividends will be payable
quarterly, if declared by the Board, but will not accrue or cumulate unless so
declared. The Certificate of Designations restricts, among other things, the
Company's ability to engage in transactions with affiliates, or to declare
dividends or make distributions with respect to, or purchase, redeem or
exchange, any Common Stock or other capital stock that ranks junior to the
Preferred Stock ("Junior Stock"). In the event that the Company fails to comply
with certain restrictions and obligations, the applicable dividend rate will be
increased to an annual rate 10%. In the event of any liquidation, dissolution or
winding up of the Company, either voluntary or involuntary, the holders of
Noncumulative Preferred Stock are entitled to receive out of assets of the
Company available for distribution to stockholders, an amount equal to $1,000
per share (the "Liquidation Preference") plus declared and unpaid dividends on
such shares, before any payment or distribution can be made to the holders of
Junior Stock.
Redemption. The Company is required to redeem, out of funds legally
available therefor, all outstanding shares of Noncumulative Preferred Stock on
December 31, 1997 at a price (the "Redemption Price") equal to 100% of the
Liquidation Preference plus all declared but unpaid dividends on such shares.
The Company may, at its option on any date set by the Board, redeem, in whole or
in part, out of funds legally available therefor, shares of Noncumulative
Preferred Stock for an amount equal to the Redemption Price, provided that all
declared and unpaid dividends on all outstanding shares of Noncumulative
Preferred Stock have been paid on or before the date of such redemption. In the
event of a Change in Control (as defined) of the Company, each holder of
outstanding Preferred
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<PAGE>
Stock will have the right to require the Company to redeem, out of funds legally
available therefor, all or any portion of such holder's shares of Noncumulative
Preferred Stock, at the applicable Redemption Price. As defined in the
Certificate of Designations, a Change in Control includes (i) the acquisition by
any person or persons acting as a group, other than Sherborne & Company
Incorporated ("SCI"), the indirect parent of SHI, or affiliates of SCI, of more
than 30% of the Company's voting securities, (ii) a consolidation or merger of
the Company or a sale of all or substantially all of its assets, or (iii)
dissolution of the Company. See "Risk Factors -- Redemption of Preferred Stock."
Effects of Preferred Stock. The Preferred Stock could have an
anti-takeover effect under certain circumstances. The issuance of shares of
Preferred Stock could enable the Board to render more difficult or discourage an
attempt to obtain control of the Company by means of a merger, tender offer or
other business combination transaction directed at the Company by, among other
things, placing shares of Preferred Stock with investors who might align
themselves with the Board of Directors, issuing new shares to dilute stock
ownership of a person or entity seeking control of the Company or creating a
class of serial Preferred Stock with class voting rights. The issuance of shares
of Preferred Stock as an anti-takeover device might preclude stockholders from
taking advantage of a situation that they believed could be favorable to their
interests.
Transfer Agent and Registrar
The transfer agent and registrar for the Company's Common Stock is
American Stock Transfer & Trust Company, 40 Wall Street, New York, NY 10005. The
Company acts as the transfer agent for the Noncumulative Preferred Stock.
Anti-Takeover Statute
Section 203 of the Delaware General Corporation Law (the "DGCL")
generally prohibits a publicly held Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless (i) prior to the date the person became an interested
stockholder, the transaction is approved by the board of directors of the
corporation, (ii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owns
at least 85% of the outstanding voting stock (other than certain shares of
voting stock, including shares owned beneficially by directors who are also
officers), or (iii) on or after the date such stockholder became an interested
stockholder, the business combination is approved by the board and by the
affirmative vote of at least 66% of the outstanding voting stock which is not
owned by the interested stockholder. A "business combination" includes mergers,
certain asset sales and certain other transactions resulting in a financial
benefit to the stockholder. An "interested stockholder" is a person who,
together with affiliates and associates, owns (or within three years, did own)
15% or more of the corporation's voting stock.
Directors' and Officers' Liability
The Company has included in its Certificate of Incorporation provisions
to (i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the fullest extent permitted
by the DGCL and (ii) indemnify its directors and officers to the fullest extent
permitted by Section 145 of the DGCL. The Company believes that these provisions
are necessary to attract and retain qualified persons as directors and officers.
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<PAGE>
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
Selling Stockholders as of June 20, 1996. Except as indicated below, all of the
shares of Common Stock beneficially owned by each Selling Stockholder are being
registered for the account of such Selling Stockholder. Since the Selling
Stockholders may sell all or some of their shares of Common Stock, no estimate
can be made of the aggregate number or amount of Common Stock which would be
owned by each Selling Stockholder upon completion of the offering to which this
Prospectus relates. The information set forth in the table was furnished to the
Company by the respective Selling Stockholders.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Number of
Shares of
Selling Stockholder Common Stock
- -----------------------------------------------------------------------------------------------------------
<S> <C>
Equitable Deal Flow Fund, L.P. 27,183
- -----------------------------------------------------------------------------------------------------------
Equitable Capital Private Income and Equity Partnership II, L.P. 95,142
- -----------------------------------------------------------------------------------------------------------
Equitable Capital Partners, L.P. 45,667
- -----------------------------------------------------------------------------------------------------------
Equitable Capital Partners (Retirement Fund), L.P. 35,882
- -----------------------------------------------------------------------------------------------------------
Mellon Bank, N.A., as trustee for First Plaza Group Trust 67,956
- -----------------------------------------------------------------------------------------------------------
Total 271,830
===========================================================================================================
</TABLE>
PLAN OF DISTRIBUTION
The sale or distribution of the Common Stock may be effected directly to
purchasers by the Selling Stockholders as principals or through one or more
underwriters, brokers, dealers or agents from time to time in one or more
transactions (which may involve crosses or block transactions) (i) on any
exchange or in the over-the-counter market, (ii) in transactions otherwise than
on an exchange or in the over-the-counter market or (iii) or through the
settlement of short sales of the Common Stock. If the Selling Stockholders
effect such transactions by selling Common Stock to or through underwriters,
brokers, dealers or agents, such underwriters, brokers, dealers or agents may
receive compensation in the form of discounts, concessions or commissions from
the Selling Stockholders or commissions from purchasers of Common Stock for whom
they may act as agent (which discounts, concessions or commissions as to
particular underwriters, brokers, dealers or agents may be in excess of those
customary in the types of transactions involved).
The Selling Stockholders and any brokers, dealers or agents that
participate in the distribution of Common Stock may be deemed to be
"underwriters" as defined in the Securities Act and any profit on the sale of
Common Stock by them and any discounts, commissions or concessions received by
any such brokers, dealers or agents might be deemed to be underwriting discounts
and commissions under the Common Stock Act.
The Common Stock may be sold from time to time in one or more
transactions at a fixed offering price, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices. It is not
possible at the present time to determine the price to the public in any sale of
Common Stock by Selling Stockholders. Accordingly, the public offering price and
the amount of any applicable underwriting discounts and commissions will be
determined at the time of such sale by Selling Stockholders.
Under the Exchange Act and Rule 10b-6 thereunder, the Selling
Stockholders and any person engaged in a distribution of the Common Stock
offered by this Prospectus may not simultaneously engage in any market making
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372811.4
<PAGE>
activities with respect to the Common Stock during the applicable two or nine
business day "cooling off" period prior to the commencement of such
distribution. In addition, without limiting the foregoing, such persons will be
subject to other provisions of the Exchange Act and the rules thereunder,
including, without limitation, Rule 10b-5, which provisions may limit the timing
of purchases and sales of the Common Stock by the Selling Stockholders and may
prevent dealers from making a market in the Common Stock during certain periods.
Under the securities laws of certain states, the Common Stock may be sold
in such states only through registered or licensed brokers or dealers. In
addition, in certain states the Common Stock may not be sold unless the Common
Stock has been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
The aggregate proceeds to the Selling Stockholders from the sale of the
Common Stock will be the purchase price of the Common Stock sold less all
applicable commissions and underwriters' discounts, if any, and other expenses
of issuance and distribution not borne by the Company. The Company will pay
substantially all the expenses incident to the registration, offering and sale
of the Common Stock to the public by Selling Stockholders other than fees,
discounts and commissions of underwriters, dealers or agents, if any, transfer
taxes and certain counsel fees.
If and to the extent required, the specific Common Stock to be sold, the
names of the Selling Stockholders, the respective purchase prices and public
offering prices, the names of any such agent, dealer or underwriter, and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying Prospectus Supplement or, if appropriate, a
post-effective amendment to the Registration Statement of which this Prospectus
is a part.
The Company has agreed to indemnify the Selling Stockholders and any
underwriters against certain liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
The validity, authorization and issuance of the Common Stock offered
hereby will be passed upon for the Company by Battle Fowler LLP (a limited
liability partnership which includes professional corporations), New York, New
York, who may rely, as to questions of California law and certain other matters,
upon an opinion of General Counsel to the Company. Battle Fowler LLP regularly
provides legal services to the Company and its affiliates. David D. Griffin, who
is of counsel to Battle Fowler LLP, holds 515,000 shares of Common Stock
directly, and is a limited partner in Newhill Partners, L.P., a partnership
which, through SHI, owns shares of Common Stock.
EXPERTS
The consolidated balance sheets as of December 31, 1995 and 1994 and the
consolidated statements of operations, stockholders' deficit and cash flows for
each of the three years in the period ended December 31, 1995, and supplemental
schedule, included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1995, have been audited by Coopers & Lybrand L.L.P.,
independent accountants, as set forth in their report included in such Annual
Report, and are incorporated herein by reference in reliance upon such report,
given upon the authority of said firm as experts in accounting and auditing.
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372811.4
<PAGE>
<TABLE>
<S> <C>
No dealer, salesman or other person has been authorized to give any information
or to make any representation not contained or incorporated by reference in this
Prospectus. If given or made, such information or representation must not be
relied upon as having been authorized by the Company. This Prospectus does not AMPEX CORPORATION
constitute an offer to sell, or a solicitation of an offer to buy, Common Stock
in any jurisdiction. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that there has
been no change in the affairs of the Company since the date hereof.
--------------
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TABLE OF CONTENTS
Page
PROSPECTUS
AVAILABLE INFORMATION....................................................... 2
INFORMATION INCORPORATED BY June __, 1996
REFERENCE........................................................ 3
THE COMPANY................................................................. 3
RISK FACTORS................................................................ 4 _________________
USE OF PROCEEDS............................................................. 8
DESCRIPTION OF CAPITAL STOCK................................................ 8
SELLING STOCKHOLDERS........................................................ 13
PLAN OF DISTRIBUTION........................................................ 13
LEGAL MATTERS............................................................... 14
EXPERTS ................................................................. 14
----------------- --------------
-15-
</TABLE>
372811.4
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses payable by Registrant in connection with the issuance
and distribution of the securities being registered (other than underwriting
discounts or commissions) are estimated as follows:
SEC Registration Fee.................. $ 923
Blue Sky Filing Fees and Expenses..... 2,500
Accounting Fees and Expenses.......... 10,000
Legal Fees and Expenses............... 25,000
Printing Expenses..................... 7,500
Miscellaneous......................... 10,000
-------
Total............................ $55,923
Item 15. Indemnification of Directors and Officers
The Registrant is a Delaware corporation. Reference is made to
Section 145 of the Delaware General Corporation Law (the "DGCL"), which provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided such
officer, director, employee or agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, for criminal proceedings, had no reasonable cause to believe that his
conduct was unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses that such officer or director actually and reasonably
incurred.
Reference is also made to Section 102(b)(7) of the DGCL, which
enables a corporation in its certificate of incorporation to eliminate or limit
the personal liability of a director for monetary damages for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Article VIII, Section 3 of the Registrant's By-laws provides as
follows:
SECTION 1. Right to Indemnification. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is made or
is threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he
372811.4
<PAGE>
is the legal representative, is or was a director or officer of the Corporation
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such person. The Corporation
shall be required to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
SECTION 2. Prepayment of Expenses. The Corporation shall pay the
expenses (including attorneys' fees) incurred in defending any proceeding in
advance of its final disposition, provided, however, that the payment of
expenses incurred by a director or officer in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by the
director or officer to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be indemnified under
this Article or otherwise.
SECTION 3. Claims. If a claim for indemnification or payment of
expenses under this Article is not paid in full within sixty days after a
written claim therefor has been received by the Corporation, the claimant may
file suit to recover the unpaid amount of such claim, and if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
SECTION 4. Non-Exclusivity of Rights. The rights conferred on any
person by this Article VIII shall not be exclusive of any other rights which
such person may have or hereafter acquire under any statute, provision of the
Restated Certificate of Incorporation, these By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 5. Other Indemnification. The Corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
SECTION 6. Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VIII shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE TEN of the Registrant's Certificate of Incorporation provides
as follows:
"A director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption
from liability or limitation thereof is not permitted under the GCL,
so the same exists or may hereafter be amended.
This ARTICLE TEN may not be amended or modified to increase
the liability of the Corporation's directors, or repealed, except
upon the affirmative vote of the holders of 80% or more in voting
power of the outstanding Common Shares. No such amendment,
modification, or repeal shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for
or with respect to any acts or omissions of such director occurring
prior to such amendment, modification, or repeal."
The Registrant has entered into agreements to indemnify its directors
in consideration of their agreement to serve as directors of the Registrant and
certain other corporations requested by the Registrant. These agreements
provide, among other things, that the Registrant will indemnify and advance
certain expenses, including attorneys' fees, to such directors to the fullest
extent permitted by applicable law, as such law may be amended from time to
time, and by the Registrant's Certificate of Incorporation, By-Laws and
resolutions.
II-2
372811.4
<PAGE>
The Company presently maintains a "Directors & Officers Liability and
Corporate Reimbursement" insurance policy with a $2,000,000 aggregate limit of
liability in each policy year. The policy provides coverage to past, present and
future directors and officers of the Company and its subsidiaries for losses
resulting from claims for which any such officer or director was not indemnified
by the Company. The policy also provides for reimbursement to the Company and
its subsidiaries for amounts paid to indemnify officers and directors for loss
resulting from claims against such officers and directors. The policy is subject
to certain exclusions, such as claims against officers and directors for
dishonest, fraudulent or criminal acts or omissions, willful violations of law,
libel and slander, bodily injury and property damage, pollution, etc.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act") may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the Common Stock being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
Item 16. Exhibits
The Exhibits to this registration statement on Form S-3 are listed in
the Exhibit Index which appears elsewhere herein and is incorporated herein by
reference.
Item 17. Undertakings
(a) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described above in Item 14, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(b) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
372811.4
<PAGE>
(3) For purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range, if applicable, may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) of the Securities Act if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (c)(1)(i) and (c)(1)(ii) above do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
II-4
372811.4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York on June 24, 1996.
AMPEX CORPORATION
By: /s/ Craig L. McKibben
Craig L. McKibben
Vice President, Chief Financial Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
Each person signing below also hereby appoints Edward J. Bramson and
Craig L. McKibben, and each of them singly, his lawful attorney-in-fact, with
full power to execute and file any amendments to the Registration Statement, and
generally to do all such things, as such attorney-in-fact may deem appropriate
to comply with the provisions of the Securities Act of 1933 and all requirements
of the Securities and Exchange Commission.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ Edward J. Bramson Chairman, President, Chief Executive June 24, 1996
- --------------------------------- Officer and Director
Edward J. Bramson (Principal Executive Officer)
/s/ Craig L. McKibben Vice President, Director, Chief June 24, 1996
- --------------------------------- Financial Officer and Treasurer
Craig L. McKibben (Principal Financial Officer and
Principal Accounting Officer)
/s/ Douglas T. McClure, Jr. Director June 24, 1996
- ---------------------------------
Douglas T. McClure, Jr.
/s/ Peter Slusser Director June 24, 1996
- ---------------------------------
Peter Slusser
/s/ William A. Stoltzfus, Jr. Director June 24, 1996
- ---------------------------------
William A. Stoltzfus, Jr.
</TABLE>
II-6
372811.4
<PAGE>
INDEX TO EXHIBITS
Exhibits
- --------
4.1 Restated Certificate of Incorporation of the
Registrant dated June 1, 1993 (filed as Exhibit
4.01 to the Registrant's Form 10-Q for the quarter
ended March 31, 1993 and incorporated herein by
reference); Certificate of Amendment of Restated
Certificate of Incorporation of the Registrant
filed with the Secretary of State of Delaware on
April 22, 1994 (filed as Exhibit 3.2 to the
Registrant's Form 8-K filed on May 2, 1994 and
incorporated herein by reference); and Certificate
of Amendment of Restated Certificate of
Incorporation of the Registrant filed with the
Secretary of State of Delaware on April 20, 1995
(filed as Exhibit 4.1 to the Registrant's Form
10-Q for the quarter ended March 31, 1995 (the
"First Quarter 1995 10-Q") and incorporated herein
by reference)
4.2 Certificate of Designations, Preferences and
Rights of the Registrant's 8% Noncumulative
Preferred Stock (filed as Exhibit 3.1 to the
Registrant's form 8-K filed on February 24, 1995
and incorporated herein by reference)
4.3 By-Laws of the Registrant, as amended through
April 20, 1995 (filed as Exhibit 4.2 to the First
Quarter 1995 10-Q and incorporated herein by
reference)
4.4 Form of Class A Common Stock Certificate (filed as
Exhibit 4.4 to the Registrant's Post-Effective
Amendment No. 1 on Form S-3 to Form S-1 (File No.
33-91312) and incorporated herein by reference)
4.5 Cancelled Warrant Certificate No. W-1, issued by
the Registrant to Equitable Deal Flow Fund, L.P.,
relating to the registration rights granted to
that holder, together with a Schedule listing each
of the other Selling Stockholders that is entitled
to similar registration rights
5.1 Opinion of Battle Fowler LLP as to legality of
securities
23.1 Consent of Coopers & Lybrand L.L.P., San
Francisco, California
23.2 Consent of Battle Fowler LLP (included in Exhibit
5.1 hereto)
24.1 Power of Attorney (included in the signature pages
of this Registration Statement)
II-7
372811.4
EXHIBIT 4.5
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF
COMMON STOCK ISSUABLE UPON THE EXERCISE OF SUCH WARRANTS HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT PURSUANT
TO (i) A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS
EFFECTIVE UNDER SUCH ACT OR (ii) RULE 144 OR RULE 144A UNDER SUCH ACT (OR ANY
OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT RELATING TO THE DISPOSITION
OF SECURITIES).
No. W-1 Warrant to Purchase Shares of Class A Common Stock
(subject to adjustment)
AMPEX CORPORATION
Incorporated Under the Laws of the State of Delaware
[CANCELLED]
This certifies that, for value received, Equitable Deal Flow Fund, L.P. or its
assigns is entitled to subscribe for and purchase, during the period specified
in this Warrant, twenty-seven thousand one hundred eighty-three (27,183)
shares (subject to adjustment as hereinafter provided) of duly authorized,
validly issued, fully paid and non-assessable Class A Common Stock, par value
$0.01 per share ("Class A Common") of Ampex Corporation, a Delaware
corporation (the "Corporation"), at an initial exercise price of $0.01 per
share, subject, however, to the provisions and upon the terms and conditions
hereinafter set forth (such exercise price, as from time to time adjusted in
accordance with the terms hereof, being hereinafter called the "Warrant
Price").
1. Duration. The right to subscribe for and purchase shares of
Warrant Stock represented hereby shall commence on the date of issuance of
this Warrant and shall expire at 5:00 P.M., New York City time, on December
31, 2000; provided, however, that if, on such expiration date, the Corporation
is then required, pursuant to an effective request therefor, to effect, or is
in the process of effecting, a registration under the Securities Act for a
public offering in which shares of Warrant Stock are, pursuant to Section 6
hereof, entitled to be included, said right to subscribe for and purchase
shares of Warrant Stock shall expire at 5:00 P.M., New York City time, on the
30th day following the date on which such registration shall have become
effective (but in no event longer than 180 days beyond the date this Warrant
otherwise would have expired).
2. Method of Exercise; Payment; Issuance of New Warrant; Transfer
and Exchange. The purchase right represented by this Warrant may be exercised
at any time prior to expiration in accordance with the provisions of Section
1.
C/M: 11115.0009 378435.1
<PAGE>
Subject to the provisions of the last paragraph of this Section 2,
the Holder hereof may exercise this Warrant, in whole or in part, by the
surrender of this Warrant (with the subscription form attached hereto duly
executed) at the principal office of the Corporation, and by the payment to
the Corporation of the then applicable Warrant Price for the shares being
purchased upon such exercise by certified or official bank check. In the event
of any exercise of the rights represented by this Warrant, (i) certificates
for the shares of Warrant Stock so purchased shall be dated the date of such
exercise and delivered to the Holder hereof within a reasonable time, not
exceeding fifteen days after such exercise, and the Holder hereof shall be
deemed for all purposes to be the Holder of the shares of Warrant Stock so
purchased as of the date of such exercise, and (ii) unless this Warrant has
expired, a new Warrant representing the number of shares, if any, with respect
to which this Warrant shall not then have been exercised shall also be issued
to the Holder hereof within such time. This Warrant may be transferred on the
books of the Corporation by the Holder hereof in person or by duly authorized
attorney, upon surrender of this Warrant at the principal office of the
Corporation, properly endorsed and upon payment of any necessary transfer tax
or other governmental charge imposed upon such transfer.
This Warrant is exchangeable at the aforesaid principal office of
the Corporation for Warrants for the purchase of the same aggregate number of
shares of Warrant Stock, each new Warrant to represent the right to purchase
such number of shares of Warrant Stock as the Holder hereof shall designate at
the time of such exchange. All Warrants issued on transfers or exchanges shall
be dated the date hereof and shall be identical with this Warrant except as to
the number of shares of Warrant Stock issuable pursuant hereto.
The Corporation will, at the time of or at any time after each
exercise of this Warrant, upon the request of the Holder hereof or of any
shares of Warrant Stock issued upon such exercise, acknowledge in writing its
continuing obligation to afford to such Holder all rights to which such Holder
shall continue to be entitled after such exercise in accordance with the terms
of this Warrant, provided that if any such Holder shall fail to make any such
request, the failure shall not affect the continuing obligation of the
Corporation to afford such rights to such Holder.
Notwithstanding the foregoing provisions of this Section 2 or any
other provision of this Warrant, upon any exercise of this Warrant in whole or
in part, the Corporation shall have the option ("Cash Appreciation Option"),
exercisable within five business days after the date of such exercise of this
Warrant (the "Date of Exercise"), to pay cash to the Holder in lieu of issuing
the shares of Class A Common with respect to which this Warrant shall then
have been exercised, in an amount equal to the product of (i) (x) two times
the Closing Price (as defined below) per share of the Class A Common on the
Date of Exercise less (y) the Warrant Price then in effect, and (ii) the
number of shares of Class A Common with respect to which this Warrant shall
have been exercised. Such cash amount shall be paid to the Holder in
immediately available funds prior to the expiration of such period of five
business days, and shall be accompanied by a notice signed by an officer of
the Corporation stating that such cash is being paid pursuant to the
provisions of this paragraph and containing a calculation in reasonable detail
of the amount thereof. For purposes of this paragraph, the "Closing Price" for
any day shall mean the last sale price
-2-
C/M: 11115.0009 378435.1
<PAGE>
per share of Class A Common reported in the Wall Street Journal or other trade
publication regular way or, in case no such reported sale takes place on such
date, the average of the last reported bid and asked prices regular way, in
either case on the principal national securities exchange on which the Class A
Common is admitted to trading or listed if that is the principal market for
the Class A Common or, if not listed or admitted to trading on any national
securities exchange or if such national securities exchange is not the
principal market for the Class A Common the closing bid price as reported by
the NASDAQ System or its successor, if any. If the price of the Class A Common
is not so reported, then the Closing Price shall mean the last known price
paid per share by a purchaser of such stock in an arms-length transaction as
provided by the Corporation in a certificate signed by an officer of the
Corporation delivered to the Holder. Any portion of this Warrant with respect
to which the Cash Appreciation Option is exercised will be deemed cancelled,
to the extent of such exercise, upon payment in full of the cash amount
required to be paid hereunder in respect thereof. To the extent that this
Warrant shall not have been exercised in full, a new Warrant representing the
number of shares, if any, with respect to which this Warrant shall not have
been exercised shall be issued to the Holder hereof concurrently with the
payment of such cash amount.
3. Stock Fully Paid; Reservation of Shares. The Corporation
covenants and agrees that all shares of Warrant Stock which may be issued upon
the exercise of the rights represented by this Warrant will, upon issuance, be
fully paid and non-assessable and free from all taxes, liens and charges with
respect to issuance. The Corporation further covenants and agrees that during
the period within which the rights represented by this Warrant may be
exercised, the Corporation will at all times have authorized and reserved for
the purpose of the issue upon exercise of this Warrant a sufficient number of
shares of Class A Common to provide for the exercise of the rights represented
by this Warrant.
If any shares of Class A Common required to be reserved for issuance
upon exercise of this Warrant require registration or qualification with any
governmental authority under any federal or state law before such shares may
be so issued, the Corporation will in good faith and as expeditiously as
possible and at its expense endeavor to cause such shares to be duly
registered or qualified.
The Corporation shall not by any action, including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant, but will at
all times in good faith assist in the carrying out of all such terms and in
the taking of all such actions as may be necessary or appropriate to protect
the rights of the Holder hereof against impairment. Without limiting the
generality of the foregoing, the Corporation will (a) not increase the par
value of any shares of Class A Common receivable upon the exercise of this
Warrant above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (b) not amend or modify any provision of the
certificate of incorporation or by-laws of the Corporation in any manner that
would adversely affect in any way the powers, preferences or relative
participating, optional or other special rights of the Class A Common, (c)
take all such action as may be necessary or appropriate in order that the
Corporation may validly and legally issue fully paid and
-3-
C/M: 11115.0009 378435.1
<PAGE>
nonassessable shares of Class A Common, free and clear of any liens, claims,
encumbrances and restrictions (other than as provided herein) upon the
exercise of this Warrant, and (d) use its best efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Corporation to perform
its obligations under this Warrant.
4. Adjustment of Number of Shares and Warrant Price. The number and
kind of securities purchasable upon the exercise of this Warrant and the
payment of the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events as follows:
(a) Recapitalization, Reorganization, Reclassification,
Consolidation, Merger or Sale. In case of any recapitalization or
reorganization of the Corporation or any reclassification or change of
outstanding Securities issuable upon exercise of this Warrant (other than a
change in par value, or from par value to no par value, or from no par value
to par value or as a result of a subdivision or combination), or in case of
any consolidation or merger of the Corporation with or into another
corporation (other than a merger with another corporation in which the
Corporation is the surviving corporation and which does not result in any
reclassification or change -- other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination -- of outstanding Securities issuable upon exercise
of this Warrant), or in case of any sale or transfer to another corporation of
the Property of the Corporation as an entirety or substantially as an
entirety, the Corporation or such successor or purchasing corporation, as the
case may be, shall, without payment of any additional consideration therefor,
issue a new Warrant, providing that the Holder of this Warrant shall have the
right to exercise such new Warrant and procure upon such exercise in lieu of
each share of Warrant Stock theretofore issuable upon exercise of this Warrant
the kind and the highest amount of shares of Stock, other securities, money
and property receivable upon such recapitalization, reorganization,
reclassification, change, consolidation, merger, sale or transfer by a Holder
of one share of Class A Common issuable upon exercise of this Warrant had it
been exercised immediately prior to such recapitalization, reorganization,
reclassification, change, consolidation, merger, sale or transfer. Such new
Warrant shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 4. The
provisions of this subsection (a) shall similarly apply to successive
recapitalizations, reorganizations, reclassifications, changes,
consolidations, mergers, sales and transfers.
(b) Subdivision or Combination of Shares. If the Corporation, at any
time while this Warrant is outstanding, shall subdivide or combine any class
or classes of its Common, the Warrant Share Number shall be proportionately
increased, in case of subdivision of shares, to reflect the increase in the
total number of shares of Common outstanding as a result of such subdivision,
as at the effective date of such subdivision, or if the Corporation shall take
a record of holders of any class or classes of its Common for the purpose of
so subdividing, as at the applicable record date, whichever is earlier, or
shall be proportionately reduced, in the case of combination of shares, to
reflect the reduction in the total number of shares of Common outstanding as a
result of such combination, as at the effective date of such combination or,
if the Corporation shall take a record of holders
-4-
C/M: 11115.0009 378435.1
<PAGE>
of any class or classes of its Common for the purpose of so combining, as at
the applicable record date, whichever is earlier.
(c) Certain Dividends and Distributions. If the Corporation, at any
time while this Warrant is outstanding, shall:
(i) Stock Dividends. Pay a dividend in, or make any other
distribution of, any class or classes of Common, the Warrant Share Number
shall be adjusted, as at the date the Corporation shall take a record of
the Holders of such class or classes of Common, for the purpose of
receiving such dividend or other distribution (or if no such record is
taken, as at the date of such payment or other distribution), to that
number determined by multiplying the Warrant Share Number in effect
immediately prior to such record date (or if no such record is taken,
then immediately prior to such payment or other distribution), by a
fraction (1) the numerator of which shall be the total number of shares
of Common outstanding immediately after such dividend or distribution
(plus in the event that the Corporation paid cash for fractional shares,
the number of additional shares which would have been outstanding had the
Corporation issued fractional shares in connection with said dividends),
and (2) the denominator of which shall be the total number of shares of
Common outstanding immediately prior to such dividend or distribution; or
(ii) Liquidating Dividends, etc. Make a distribution of its
Property to the Holders of any class or classes of its Common as a
dividend in liquidation or partial liquidation or by way of return of
capital other than as a dividend payable out of funds legally available
for dividends under the laws of the State of Delaware, the Holder of this
Warrant shall, upon exercise, be entitled to receive, in addition to the
number of shares of Warrant Stock receivable thereupon, and without
payment of any consideration therefor, a sum equal to the amount of such
Property as would have been payable to such Holder as owner of that
number of shares of Warrant Stock of the Corporation receivable by
exercise of this Warrant, had such Holder been the Holder of record of
such Warrant Stock on the record date for such distribution; and an
appropriate provision therefor shall be made a part of any such
distribution.
(d) Issuance of Additional Shares of Common. If the Corporation, at
any time while this Warrant is outstanding, shall issue any Additional Shares
of Common (otherwise than as provided in the foregoing subsections (a) through
(c) of this Section 4), at a price per share less than the Current Market
Price then in effect or without consideration, then the Warrant Share Number
upon each such issuance shall be adjusted to that price determined by
multiplying the Warrant Share Number in effect immediately prior thereto by a
fraction:
(i) the numerator of which shall be the number of shares of
Common outstanding immediately after the issuance of such Additional
Shares of Common, and
-5-
C/M: 11115.0009 378435.1
<PAGE>
(ii) the denominator of which shall be the number of shares of
Common outstanding immediately prior to the issuance of such Additional
Shares of Common plus the number of shares of Common which the aggregate
consideration for the total number of such Additional Shares of Common so
issued would purchase at the Current Market Price.
The provisions of this subsection (d) shall not apply under any of the
circumstances for which an adjustment is provided in subsections (a), (b) or
(c) of this Section 4. No adjustment of the Warrant Share Number shall be made
under this subsection (d) upon the issuance of any Additional Shares of Common
which are issued pursuant to any Common Stock Equivalent if upon the issuance
of such Common Stock Equivalent (1) any adjustment shall have been made
pursuant to subsection (e) of this Section 4 or (2) no adjustment was required
pursuant to subsection (e) of this Section 4.
(e) Issuance of Common Stock Equivalents. If the Corporation shall,
at any time while this Warrant is outstanding, issue any Common Stock
Equivalent and the price per share for which Additional Shares of Common may
be issuable thereafter pursuant to such Common Stock Equivalent shall be less
than the Current Market Price then in effect, or if, after any such issuance
of Common Stock Equivalents, the price per share for which Additional Shares
of Common may be issuable thereafter is amended, and such price as so amended
shall be less than the Current Market Price in effect at the time of such
amendment, then the Warrant Share Number upon each such issuance or amendment
shall be adjusted as provided in the second sentence of subsection (d) of this
Section 4 on the basis that (1) the maximum number of Additional Shares of
Common issuable pursuant to all such Common Stock Equivalents shall be deemed
to have been issued (whether or not such Common Stock Equivalents are actually
then exercisable, convertible or exchangeable in whole or in part) as of the
earlier of (A) the date on which the Corporation shall enter into a firm
contract for the issuance of such Common Stock Equivalent, or (B) the date of
actual issuance of such Common Stock Equivalent, and (2) the aggregate
consideration for such maximum number of Additional Shares of Common shall be
deemed to be the minimum consideration received and receivable by the
Corporation for the issuance of such Additional Shares of Common pursuant to
such Common Stock Equivalent. No adjustment of the Warrant Share Number shall
be made under this subsection (e) upon the issuance of any Convertible
Security which is issued pursuant to the exercise of any warrants or other
subscription or purchase rights therefor, if any adjustment shall previously
have been made in the Warrant Share Number then in effect upon the issuance of
such warrants or other rights pursuant to this subsection (e).
(f) Purchase of Common by the Corporation. If the Corporation, at
any time while this Warrant is outstanding, shall, directly or indirectly
through a Subsidiary or otherwise, purchase, redeem or otherwise acquire any
of its Common at a price per share greater than the Current Market Price then
in effect, then the Warrant Share Number upon each such purchase, redemption
or acquisition shall be adjusted to that price determined by multiplying such
Warrant Share Number by a fraction (i) the numerator of which shall be the
number of shares of Common outstanding immediately after such purchase,
redemption or acquisition and (ii) the denominator of which shall be the
number of shares of Common outstanding immediately prior to such purchase,
redemption or acquisition minus the number of shares of Common which the
aggregate consideration for the total
-6-
C/M: 11115.0009 378435.1
<PAGE>
number of such shares of Common so purchased, redeemed or acquired would
purchase at the Current Market Price. For the purposes of this subsection (f),
the date as of which the Current Market Price shall be computed shall be the
earlier of (x) the date on which the Corporation shall enter into a firm
contract for the purchase, redemption or acquisition of such Common, or (y)
the date of actual purchase, redemption or acquisition of such Common. For the
purposes of this subsection (f), a purchase, redemption or acquisition of a
Common Stock Equivalent shall be deemed to be a purchase of the underlying
Common, and the computation herein required shall be made on the basis of the
full exercise, conversion or exchange of such Common Stock Equivalent on the
date as of which such computation is required hereby to be made, whether or
not such Common Stock Equivalent is actually exercisable, convertible or
exchangeable on such date.
(g) Other Provisions Applicable to Adjustments Under this Section 4.
The following provisions shall be applicable to the making of adjustments in
the Warrant Share Number hereinbefore provided in this Section 4:
(i) Computation of Consideration. The consideration received by
the Corporation shall be deemed to be the following: to the extent that
any Additional Shares of Common or any Common Stock Equivalents shall be
issued for a cash consideration, the consideration received by the
Corporation therefor, or, if such Additional Shares of Common or Common
Stock Equivalents are offered by the Corporation for subscription, the
subscription price, or, if such Additional Shares of Common or Common
Stock Equivalents are sold to underwriters or dealers for public offering
without a subscription offering, the initial public offering price, in
any such case excluding any amounts paid or receivable for accrued
interest or accrued dividends and without deduction of any compensation,
discounts, commissions, or expenses paid or incurred by the Corporation
for or in connection with the underwriting thereof or otherwise in
connection with the issue thereof. The consideration for any Additional
Shares of Common issuable pursuant to any Common Stock Equivalents shall
be the consideration received by the Corporation for issuing such Common
Stock Equivalents, plus the additional consideration payable to the
Corporation upon the exercise, conversion or exchange of such Common
Stock Equivalents. In case of the issuance at any time of any Additional
Shares of Common or Common Stock Equivalents in payment or satisfaction
of any dividend upon any class of Stock other than Common, the
Corporation shall be deemed to have received for such Additional Shares
of Common or Common Stock Equivalents a consideration equal to the amount
of such dividend so paid or satisfied. In any case in which the
consideration to be received or paid shall be other than cash, the Board
shall determine in good faith the fair market value of such consideration
and promptly notify the Holder of this Warrant of its determination of
the fair market value of such consideration prior to payment or accepting
receipt thereof. If, within thirty days after receipt of said notice, the
Majority Holders shall notify the Board in writing of their objection to
such determination, a determination of fair market value of such
consideration shall be made by an Appraiser selected by the Majority
Holders and consented to by the Corporation (such consent not to be
unreasonably withheld), with the Corporation to pay the expenses of such
Appraiser.
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(ii) Readjustment of Warrant Share Number. Upon the expiration
of the right to convert, exchange or exercise any Common Stock Equivalent
the issuance of which effected an adjustment in the Warrant Share Number,
if such Common Stock Equivalent shall not have been converted, exercised
or exchanged, the number of shares of Class A Common deemed to be issued
and outstanding by reason of the fact that they were issuable upon
conversion, exchange or exercise of any such Common Stock Equivalent
shall no longer be computed as set forth above, and the Warrant Share
Number shall forthwith be readjusted and thereafter be the price which it
would have been (but reflecting any other adjustments in the Warrant
Share Number made pursuant to the provisions of this Section 4 after the
issuance of such Common Stock Equivalent) had the adjustment of the
Warrant Share Number been made in accordance with the issuance or sale of
the number of Additional Shares of Common actually issued upon
conversion, exchange or issuance of such Common Stock Equivalents, and
thereupon only the number of Additional Shares of Common actually so
issued shall be deemed to have been issued and only the consideration
actually received by the Corporation (computed as in clause (i) of this
subsection (g)) shall be deemed to have been received by the Corporation.
(iii) Treasury Shares. The number of shares of Common at any
time outstanding shall not include any shares thereof then directly or
indirectly owned or held by or for the account of the Corporation or any
of its Subsidiaries.
(h) Other Action Affecting Common. In case after the date hereof the
Corporation shall take any action affecting its Common, other than an action
described in any of the foregoing subsections (a) through (g) of this Section
4, inclusive, and the failure to make any adjustment would not fairly protect
the purchase rights represented by this Warrant in accordance with the
essential intent and principle of this Section 4, then the Warrant Share
Number shall be adjusted in such manner and at such time as the Board may in
good faith determine to be equitable in the circumstances.
(i) Adjustment of Warrant Price. Upon each adjustment in the Warrant
Share Number pursuant to any provision of this Section 4, the Warrant Price
shall be adjusted, to the nearest one hundredth of one cent, to the product
obtained by multiplying the Warrant Price in effect immediately prior to such
adjustment by a fraction the numerator of which shall be the Warrant Share
Number immediately prior to such adjustment and the denominator of which shall
be the Warrant Share Number immediately thereafter; provided, however, that if
at any time, as a result of any adjustments hereunder, the Warrant Price shall
be less than the par value per share of Warrant Stock, then the price payable
per share of Warrant Stock by the Holder hereunder in the event of an exercise
of this Warrant at such time in whole or in part shall be an amount equal to
the par value per share of Warrant Stock.
5. Notice of Adjustments. Whenever the Warrant Share Number or the
Warrant Price shall be adjusted pursuant to Section 4 hereof, the Corporation
shall cause the independent accounting firm then regularly engaged by it to
report on its financial statements to prepare and execute a certificate
setting forth, in reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such
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adjustment was calculated (including a description of the basis on which the
Board made any determination hereunder), and the Warrant Share Number and
Warrant Price after giving effect to such adjustment, and shall cause copies
of such certificate to be mailed (by first class mail postage prepaid) to the
Holder of this Warrant promptly after each adjustment.
5A. Determination of Fair Value Binding; Expenses; Cooperation.
Whenever any provision of this Agreement requires a determination of Fair
Value pursuant to the Appraisal Procedure, such determination in accordance
with such procedure shall be binding on the Holders and the Corporation. If an
Appraiser is selected by agreement between the Corporation and the Majority
Holders, the fees and expenses of such Appraiser shall be paid one-half by the
Corporation and one-half by all of the Holders (on a pro rata basis among such
Holders on the basis of the relative number of shares of Warrant Stock held,
or issuable upon the exercise of the Warrants held, by each such Holder). If
two Appraisers are selected (one by each of the Corporation and the Majority
Holders), the Corporation shall pay the fees and expenses of the Appraiser
selected by it and all of the Holders shall pay the fees and expenses of the
Appraiser selected by the Majority Holders (on a pro rata basis among such
Holders on the basis of the relative number of shares of Warrant Stock held,
or issuable upon the exercise of the Warrants held, by each such Holder). If a
third Appraiser is selected, the fees and expenses of such third Appraiser
shall be paid one-half by the Corporation and one-half by all of the Holders
(on a pro rata basis among such Holders on the basis of the relative number of
shares of Warrant Stock held, or issuable upon the exercise of the Warrants
held, by each such Holder). The Corporation agrees to fully cooperate with all
Appraisers and, in connection therewith, the Corporation shall make available
to all such Appraisers all information (financial or otherwise) relating to
the Corporation and its Subsidiaries reasonably requested by such Appraisers.
6. Registration Rights.
6.1. Piggyback Registrations.
(a) If the Corporation at any time after the date hereof proposes to
register any of its equity or debt securities under the Securities Act (other
than a registration on Form S-4 or S-8 or any successor or similar forms
thereto), whether or not for sale for its own account, on a form and in a
manner that would permit registration of Registrable Securities for sale to
the public under the Securities Act, it will give written notice to all
holders of Registrable Securities promptly of its intention to do so,
describing such securities and specifying the form and manner and the other
relevant facts involved in such proposed registration (including, without
limitation, (x) whether or not such registration will be in connection with an
underwritten offering of Registrable Securities and, if so, the identity of
the managing underwriter and whether such offering will be pursuant to a "best
efforts" or "firm commitment" underwriting and (y) the price (net of any
underwriting commissions, discounts and the like) at which the Registrable
Securities are reasonably expected to be sold) if such disclosure is
acceptable to the managing underwriter. Upon the written request of any such
holder delivered to the Corporation within 30 calendar days after the receipt
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by such holder and the intended method of
disposition thereof),
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the Corporation will use best efforts to effect the registration under the
Securities Act of all of the Registrable Securities that the Corporation has
been so requested to register; provided, however, that:
(i) If, at any time after giving such written notice of its
intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration,
the Corporation shall determine for any reason not to register such
securities, the Corporation may, at its election, give written notice of
such determination to each holder of Registrable Securities who made a
request as hereinabove provided and thereupon the Corporation shall be
relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith).
(ii) If such registration involves a firm commitment
underwritten offering ("Underwritten Offering"), all holders of
Registrable Securities requesting to be included in the Corporation's
registration must sell their Registrable Securities to the underwriters
selected by the Corporation on the same terms and conditions as apply to
the Corporation.
(b) The Corporation shall not be obligated to effect any
registration of Registrable Securities under this Section 6.1 incidental to
the registration of any of its securities in connection with mergers,
acquisitions, exchange offers, dividend reinvestment plans or stock option or
other employee benefit plans, and shall not be obligated to include any
Registrable Securities in its shelf Registration Statement on Form S-1 (File
No. 33- 91312) filed with the Securities and Exchange Commission.
(c) The Registration Expenses incurred in connection with each
registration of Registrable Securities requested pursuant to this Section 6.1
shall be paid by the Corporation.
(d) If a registration pursuant to this Section 6.1 involves an
Underwritten Offering and the managing underwriter advises the Corporation
that, in its opinion, the number of securities proposed to be included in such
registration should be limited due to market conditions, then the Corporation
will include in such registration (i) first, the securities the Corporation
proposes to sell and (ii) second, the number of such Registrable Securities
and other shares of the same class of securities as the Registrable Securities
requested to be included in such registration that, in the opinion of such
managing underwriter, can be sold, such amount to be allocated pro rata among
all requesting holders of such Registrable Securities and other securities on
the basis of the relative number of shares of such Registrable Securities and
other securities which each such holder has requested to be included in such
registration (it being understood and agreed by the parties hereto that in the
event of any conflict or inconsistency between the provisions of this Section
6.1(d) and the provisions of any other agreement, to which the Corporation is
a party, whether arising upon the exercise of demand and/or piggyback
registration rights pursuant to this Agreement and such other agreement
(regardless of the order in which such rights are exercised) or otherwise, the
provisions of this Section 6.1(d) shall govern and prevail).
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(e) In connection with any Underwritten Offering with respect to
which holders of Registrable Securities shall have requested registration
pursuant to this Section 6.1, the Corporation shall have the right to select
the managing underwriter with respect to the offering; provided, however, that
such managing underwriter is reasonably acceptable to the holders of a
majority of the Registrable Securities requested to be sold in such
Underwritten Offering.
6.2. Registration Procedures.
(a) If and whenever the Corporation is required to use its best
efforts to effect or cause the registration of any Registrable Securities
under the Securities Act as provided in Section 6.1, the Corporation will, as
expeditiously as possible:
(i) Prepare and, in any event within 60 calendar days after the
end of the period within which requests for registration may be given to
the Corporation, file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective; provided, however,
that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Corporation, will furnish to the
counsel selected by the holders of Registrable Securities copies of all
such documents proposed to be filed, which documents will be subject to
the review of such counsel; and, provided, further, that the Corporation
may discontinue any registration of its securities that is being effected
pursuant to Section 6.1 at any time prior to the effective date of the
registration statement relating thereto.
(ii) Prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for a period as may be
requested by the holders of registrable securities not exceeding nine
months and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement.
(iii) Furnish to each holder of Registrable Securities covered
by the registration statement and to each underwriter, if any, of such
Registrable Securities, such number of copies of a prospectus and
preliminary prospectus for delivery in conformity with the requirements
of the Securities Act, and such other documents, as such Person may
reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each seller
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to
consummate the disposition of the Registrable Securities owned by such
seller, in such jurisdictions, except that the Corporation shall not for
any such purpose be required (A) to qualify to do business as a foreign
corporation in any
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jurisdiction where, but for the requirements of this Section 6.2(a)(iv),
it is not then so qualified, (B) to subject itself to taxation in any
such jurisdiction, or (C) to take any action which would subject it to
general or unlimited service of process in any such jurisdiction where it
is not then so subject.
(v) Use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of
such Registrable Securities.
(vi) Immediately notify each seller of Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 6.2(a)(ii), if the
Corporation becomes aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing, and, at the request of
any such seller, deliver a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing.
(vii) Otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make generally available
to its security holders, in each case as soon as practicable, but not
later than 45 calendar days after the close of the period covered thereby
(90 calendar days in case the period covered corresponds to a fiscal year
of the Corporation), an earnings statement of the Corporation which will
satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with any
underwriters to list such Registrable Securities on each securities
exchange as they may reasonably designate.
(ix) In the event the offering is an Underwritten Offering, use
its best efforts to obtain a "cold comfort" letter from the independent
public accountants for the Corporation in customary form and covering
such matters of the type customarily covered by such letters as the
holders of Registrable Securities reasonably request in order to effect
an underwritten public offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents
(including in an Underwritten Offering an underwriting agreement in
customary form) and take such other actions and obtain such certificates
and opinions as the Equitable Investors reasonably request in order to
effect an underwritten public offering of such Registrable Securities.
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(b) Each holder of Registrable Securities will, upon receipt of any
notice from the Corporation of the happening of any event of the kind
described in Section 6.2(a)(vi), forthwith discontinue disposition of the
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6.2(a)(vi).
(c) If a registration pursuant to Section 6.1 involves an
Underwritten Offering, each holder of Registrable Securities agrees, whether
or not such holder's Registrable Securities are included in such registration,
not to effect any public sale or distribution, including any sale pursuant to
Rule 144 under the Securities Act, of any Registrable Securities, or of any
Security convertible into or exchangeable or exercisable for any Registrable
Securities (other than as part of such Underwritten Offering), without the
consent of the managing underwriter, during a period commencing seven calendar
days before and ending 90 calendar days (or such lesser number as the managing
underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 involves an
Underwritten Offering, the Corporation agrees, if so required by the managing
underwriter, not to effect any public sale or distribution of any of its
equity or debt securities, as the case may be, or securities convertible into
or exchangeable or exercisable for any of such equity or debt securities, as
the case may be, during a period commencing seven calendar days before and
ending 90 calendar days after the effective date of such registration, except
for such Underwritten Offering or except in connection with a stock option
plan, stock purchase plan, savings or similar plan, or an acquisition, merger
or exchange offer.
(e) If a registration pursuant to Section 6.1 involves an
Underwritten Offering, any holder of Registrable Securities requesting to be
included in such registration may elect, in writing, prior to the effective
date of the registration statement filed in connection with such registration,
not to register such securities in connection with such registration, unless
such holder has agreed with the Corporation or the managing underwriter to
limit its right under this Section 6.2.
(f) It is understood that in any Underwritten Offering in addition
to any shares of stock (the "initial shares") the underwriters have committed
to purchase, the underwriting agreement may grant the underwriters an option
to purchase up to a number of additional shares of stock (the "option shares")
equal to 15% of the initial shares (or such other maximum amount as the NASD
may then permit), solely to cover over-allotments. Shares of stock proposed to
be sold by the Corporation and the other sellers shall be allocated between
initial shares and option securities as agreed or, in the absence of
agreement, pursuant to Section 6.1(d). The number of initial shares and option
shares to be sold by requesting holders shall be allocated pro rata among all
such holders on the basis of the relative number of shares of Registrable
Securities each such holder has requested to be included in such registration.
(g) Notwithstanding anything in this Section 6 to the contrary, in
lieu of exercising any Warrant prior to or simultaneously with the filing or
the effectiveness of any registration statement filed pursuant to this Section
6, the holder of such Warrant may sell such Warrant to the underwriter of the
offering being registered upon the undertaking of
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such underwriter to exercise such Warrant before making any distribution
pursuant to such registration statement and to include the Class A Common
issued upon such exercise among the securities being offered pursuant to such
registration statement. The Corporation agrees to cause such Class A Common to
be offered pursuant to such registration statement, to be issued within such
time as will permit the underwriter to make and complete the distribution
contemplated by the underwriting.
6.3. Indemnification.
(a) In the event of any registration of any securities of the
Corporation under the Securities Act pursuant to Section 6.1 hereof, the
Corporation will, and it hereby agrees to, indemnify and hold harmless, to the
extent permitted by law, each seller of any Registrable Securities covered by
such registration statement, its directors and officers or general and limited
partners (and directors and officers thereof and, if such seller is a
portfolio or investment fund, its investment advisors or agents, and, in any
event, Equitable Capital Management Corporation and its directors, its
employees and officers), each other Person who participates as an underwriter
in the offering or sale of such securities and each other Person, if any, who
controls such seller or any such underwriter within the meaning of the
Securities Act, as follows:
(i) against any and all loss, liability, claim, damage or
expense whatsoever arising out of or based upon an untrue statement or
alleged untrue statement of a material fact contained in any registration
statement (or any amendment or supplement thereto), including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out
of an untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Corporation; and
(iii) against any and all expense reasonably incurred by them
in connection with investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written
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information furnished to the Corporation by or on behalf of any underwriter,
or any holder of Registrable Securities included in a registration statement
of the Corporation, expressly for use in the preparation of any registration
statement (or any amendment thereto) or any preliminary prospectus or
prospectus (or any amendment or supplement thereto); and provided, further,
that the Corporation will not be liable to any Person who participates as an
underwriter or a seller in the offering or sale of Registrable Securities or
any other Person, if any, who controls such underwriter or seller within the
meaning of the Securities Act, under the indemnity agreement in this Section
6.3(a) with respect to any preliminary prospectus or final prospectus or final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of such underwriter or seller or
controlling Person results from the fact that such underwriter or seller sold
Registrable Securities to a Person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the final prospectus
or of the final prospectus as then amended or supplemented, whichever is most
recent, if the Corporation has previously furnished copies thereof to such
underwriter or seller, as applicable. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
seller or any such director, officer, general or limited partner, investment
advisor or agent, underwriter or controlling Person and shall survive the
transfer of such securities by such seller.
(b) The Corporation may require, as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 6.1, that the Corporation shall have received an undertaking
reasonably satisfactory to it from the prospective seller of such Registrable
Securities or any underwriter, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 6.3(a)) the Corporation
with respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Corporation by or on behalf of such seller or underwriter specifically stating
that it is for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Corporation or any such director,
officer or controlling Person and shall survive the transfer of such
securities by such seller. In that event, the obligations of the Corporation
and such sellers pursuant to this Section 6.3 are to be several and not joint;
provided, however, that, with respect to each claim pursuant to this Section
6.3, the Corporation shall be liable for the full amount of such claim, and
each such seller's liability under this Section 6.3 shall be limited to an
amount equal to the net proceeds (after deducting the underwriting discount
and expenses) received by such seller from the sale of Registrable Securities
pursuant to this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of
written notice of the commencement of any action or proceeding involving a
claim referred to in this Section 6.3, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party, give written
notice to such indemnifying party of the commencement of such action;
provided, however, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its
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obligations under this Section 6.3, except to the extent (not including any
such notice of an underwriter) that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim (in which case the indemnifying
party shall not be liable for the fees and expenses of more than one firm of
counsel for a majority of the sellers of Registrable Securities and one firm
of counsel selected by the holders of Registrable Securities requested to be
registered, or more than one firm of counsel for the underwriters in
connection with any one action or separate but similar or related actions),
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similar notified,
to the extent that it may wish with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnifying party in
connection with the defense thereof.
(d) The Corporation and each seller of Registrable Securities shall
provide for the foregoing indemnity (with appropriate modifications) in any
underwriting agreement with respect to any required registration or other
qualification of securities under any federal or state law or regulation of
any governmental authority.
6.4. Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnity contemplated by
Section 6.3 is for any reason not available, the parties required to indemnify
by the terms thereof shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Corporation, any seller of Registrable Securities
and one or more of the underwriters, except to the extent that contribution is
not permitted under Section 11(f) of the Securities Act. In determining the
amounts which the respective parties shall contribute, there shall be
considered the relative benefits received by each party from the offering of
the Registrable Securities (taking into account the portion of the proceeds of
the offering realized by each), the parties, relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission and
any other equitable considerations appropriate under the circumstances;
provided, however, that no seller of Registrable Securities shall be required
to contribute any amount in excess of the net proceeds (after deducting the
underwriting discount and expenses) received by such sellers from the sale of
Registrable Securities pursuant to this Agreement. The Corporation and each
such seller agree with each other and the underwriters of the Registrable
Securities, if requested by such underwriters, that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita
allocation (even if the underwriters were treated as one entity for such
purpose) or for the underwriters' portion of such contribution to exceed the
percentage that the underwriting discount bears to the initial public offering
price of the Registrable Securities. For purposes of this Section 6.4, each
Person, if any, who controls an underwriter within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as such
underwriter, and each director and each officer of the Corporation who signed
the registration statement, and each Person, if any, who controls the
Corporation or a seller of Registrable Securities
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within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as the Corporation or a seller of Registrable
Securities, as the case may be.
6.5. Rule 144. If the Corporation shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Corporation covenants that it will file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder (or, if the Corporation is not required to file
such reports, it will, upon the request of any holder of Registrable
Securities, make publicly available other information), and it will take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
shares of Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of
any holder of Registrable Securities, the Corporation will deliver to such
holder a written statement as to whether it has complied with such
requirements.
7. Definitions. For the purposes of this Warrant, the following
terms have the following meanings:
"Additional Shares of Common" shall mean all shares of Common
issued by the Corporation after the date hereof except (i) Warrant Stock,
(ii) Class A Common issued upon the conversion of Class C Common in
accordance with its terms, (iii) Common issued upon the exercise of
Warrants initially exercisable to purchase not more than 2,564,273 shares
of Common, in the aggregate, issued by the Corporation pursuant to that
certain Warrant Agreement dated as of July 24, 1992, as amended December
15, 1992 and as amended and restated as of April 22, 1994, between the
Corporation and Chemical Trust Company of California, as Warrant Agent,
(iv) not more than 1,766,400 shares, in the aggregate, of Class A Common
issued pursuant to the Corporation's Stock Incentive Plan, and (v) Common
issued upon the conversion of the Corporation's outstanding Zero Coupon
Notes due June 30, 1997, initially convertible into 8,522,599 shares of
Common, issued pursuant to the Indenture dated as of April 22, 1995
between the Corporation and State Street Bank and Trust Company, as
Indenture Trustee.
"AMHI" shall mean Ampex Media Holdings Incorporated, a Delaware
corporation.
"Appraisal Procedure" shall mean a determination of Fair Value
(on the basis set forth in the definition of that term) by an Appraiser
selected by the Corporation and the Majority Holders, which Appraiser
shall be directed to independently determine Fair Value and to submit its
determination in writing to the Corporation and such Holders at the
earliest practicable date, but in any event within 45 days following the
selection of such Appraiser, provided that if the Corporation and such
Holders are unable to agree upon the selection of an Appraiser within 30
days, then each of the Corporation and such Holders shall select an
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C/M: 11115.0009 378435.1
<PAGE>
Appraiser who shall be directed to independently determine the Fair Value
and to submit its determination in writing to the Corporation and such
Holders at the earliest practicable date, but in any event within 45 days
following the selection of both Appraisers. If the value determined by
the Appraiser whose determination is the higher of the two appraisals
does not exceed by more than ten percent (10%) the average of the values
determined by each Appraiser, Fair Value shall be the average of the
values determined by the two Appraisers. If the value determined by the
Appraiser whose determination is the higher of the two appraisals does
exceed by more than ten percent (10%) the average of the value determined
by each Appraiser, then the two Appraisers shall, within 15 days
following submission to the Corporation and such Holders of the later of
such two appraisals, select a third independent Appraiser who shall be
directed to determine Fair Value independently of the other Appraisers
and to submit its determination in writing to the Corporation and such
Holders at the earliest practicable date, but in any event within 45 days
of such Appraiser's selection. The value determined by the Appraiser
whose determination is the most discrepant from the average of the three
appraisals shall be discarded, and Fair Value shall equal the average of
the remaining two appraisals, except that if the highest and lowest
appraisals are equally discrepant from the average of the three
appraisals, Fair Value shall be such average. Fair value shall in all
cases be determined on the basis set forth in the definition of that
term, and all Appraisers shall be so instructed.
"Appraiser" shall mean an independent appraiser of recognized
national standing.
"ARMC" shall mean Ampex Recording Media Corporation, an Alabama
corporation.
"Board" shall mean the Board of Directors of the Corporation.
"Class A Common" shall mean the Corporation's Class A Common
Stock, par value $0.01 per share, and any Stock into which such Class A
Common may hereafter be changed.
"Class C Common" shall mean the Corporation's Class C Common
Stock, par value $0.01 per share, and any Stock into which such Class C
Common may hereafter be changed other than by exercise of the conversion
right thereof.
"Common" shall mean any of the Class A Common, the Class C
Common and any capital stock of the Corporation of any class which shall
be authorized at any time after the date of this Warrant and which shall
have the right to participate in the distribution of earnings and assets
of the Corporation without limitation as to amount.
"Common Stock Equivalent" shall mean any Convertible Security
or warrant, option or other right to subscribe for or purchase any
Additional Shares of Common or any Convertible Security.
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<PAGE>
"Convertible Securities" shall mean evidences of indebtedness,
shares of Stock or other Securities which are or may be at any time
convertible into or exchangeable for Additional Shares of Common. The
term "Convertible Security" shall mean one of the Convertible Securities.
"Corporation" shall mean Ampex Corporation, a Delaware
corporation, and its successors and assigns.
"Current Market Price" per share of Common on any date shall
mean, except as hereinafter provided, the average of the daily market
prices for the 30 consecutive trading days preceding such date. The
market price for each such day shall be the last sale price on such day
as reported on the New York Stock Exchange Consolidated Tape, or, if such
Common is not listed on the New York Stock Exchange, Inc. or reported on
such Consolidated Tape, then the last sale price on such day on the
principal domestic stock exchange on which such stock is then listed or
admitted to trading, or, if no sale takes place on such day on such
exchange, the average of the closing bid and asked prices on such day as
officially quoted on such exchange, or, if such Common is not then listed
or admitted to trading on any domestic stock exchange but is quoted in
the National Market System ("NMS/NASDAQ") of the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ"), then the
Current Market Price for each such trading day shall be the last sale
price on such day as quoted by NMS/NASDAQ, or if no sale takes place on
such day or if such Common is neither listed or admitted to trading on
any domestic stock exchange nor quoted on such National Market System,
then the Current Market Price for each such trading day shall be the
average of the reported closing bid and asked price quotations on such
day in the over-the-counter market, as reported by NASDAQ, or, if not so
reported, as furnished by the National Quotation Bureau, Inc., or, if
such firm at the time is not engaged in the business of reporting such
prices, as furnished by any similar firm then engaged in such business as
selected by the Corporation, or if there is no such firm, as furnished by
any member of the National Association of Securities Dealers, Inc.
selected by the Corporation with the written approval of the Holders of
Warrants exercisable for a majority of the shares of Warrant Stock
issuable under then outstanding Warrants. If at any time such Common is
not listed on any domestic exchange or quoted in the domestic
over-the-counter market, the Current Market Price shall be deemed to be
an amount mutually agreed upon in writing between the Corporation and the
Holder of this Warrant within fifteen days immediately following the date
on which the Current Market Price is to be determined. If no agreement as
to Current Market Price is determined as stated herein, the Current
Market Price per share of Common shall be the Fair Value per share of
Common, as determined pursuant to the Appraisal Procedure.
"Dividend" shall mean any dividend or other distribution on
Common (other than in connection with a liquidation), whether in the form
of money, instruments of indebtedness or any other properties or
securities (other than shares of Common).
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C/M: 11115.0009 378435.1
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Agreement" shall mean the Warrant Exchange Agreement,
dated as of July 24, 1992, by and among the Corporation, AMHI and the
holders of certain warrants issued by AMHI.
"Fair Value" per share of Common as of any date shall mean an
amount equal to (a) the fair value of the Corporation and its
Subsidiaries as a whole, as determined pursuant to the Appraisal
Procedure, based upon the greater of its going concern value or its
liquidation value; divided by (b) the number of shares of Common
outstanding as of such date.
"Fully Diluted" with respect to any Stock of the Corporation at
any time shall mean all shares of such Stock then issued and outstanding
plus all shares of such Stock which would be outstanding upon the
exercise of any warrants (including the Warrants), options or rights to
acquire such Stock which are then outstanding, regardless of whether such
warrants, options or rights are then exercisable.
"Holders" shall mean the Persons who shall from time to time
own of record any Warrant. The term "Holder" shall mean one of the
Holders.
"Initial Public Offering" shall mean the initial filing of a
registration statement under the Securities Act respecting an offering,
whether primary or secondary, of Common (or securities convertible into,
or exchangeable for, Common, or rights to acquire Common or such
securities) (other than a transaction in which a registration statement
is filed on Form S-4 or S-8 or similar forms thereto).
"Majority Holders" at any time shall mean the holders of shares
of Warrant Stock representing a majority at such time of the outstanding
shares of Warrant Stock. For the purpose of this definition, Holders of
Warrants shall be deemed to hold the Warrant Stock issuable upon the
exercise of the Warrants, and such Warrant Stock shall be deemed to be
outstanding, regardless of whether such Warrants have in fact then been
exercised.
"Merger" shall mean a merger or consolidation of the
Corporation other than a merger of the Corporation with a wholly-owned
Subsidiary of the Corporation where the Corporation is the survivor.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" shall mean an individual, a corporation, a
partnership, a trust, an unincorporated organization or a government
organization or an agency or political subdivision thereof.
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C/M: 11115.0009 378435.1
<PAGE>
"Property" shall mean any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Recapitalization" shall mean any recapitalization or
reorganization of the Corporation or any reclassification or change of
outstanding Securities issuable upon exercise of this Warrant (other than
a change in par value, or from par value to no par value, or from no par
value to par value or as a result of a subdivision or combination).
"Registrable Securities, means (i) all shares of Class A Common
purchasable or purchased upon exercise of this Warrant or any of the
other Warrants (and for the purposes of Section 6 hereof, prior to the
exercise of such Warrants all such shares shall nevertheless be deemed to
be outstanding and held by the respective holders of such Warrants), and
(ii) any shares of Common issued or issuable by the Corporation in
respect of any shares of Common or Warrants referred to in the foregoing
clause (i) by way of a stock dividend or stock split or in connection
with a combination or subdivision of shares, reclassification,
recapitalization, merger, consolidation or other reorganization of the
Corporation. As to any particular Registrable Securities that have been
issued, such securities shall cease to be Registrable Securities when (i)
a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities
shall have been disposed of under such registration statement, (ii) they
shall have been distributed to the public pursuant to Rule 144, (iii)
they shall have been otherwise transferred or disposed of, and new
certificates therefor not bearing a legend restricting further transfer
shall have been delivered by the Corporation, and subsequent transfer or
disposition of them shall not require their registration or qualification
under the Securities Act or any similar state law then in force, or (iv)
they shall have ceased to be outstanding.
"Registration Expenses, shall mean any and all out-of-pocket
expenses incident to the Corporation's performance of or compliance with
Section 6 hereof, including, without limitation, all Commission, stock
exchange or National Association of Securities Dealers, Inc. ("NASD")
registration and filing fees, all fees and expenses of complying with
securities and blue sky laws (including the reasonable fees and
disbursements of underwriters' counsel in connection with blue sky
qualifications and NASD filings), all fees and expenses of the transfer
agent and registrar for the Registrable Securities, all printing
expenses, the fees and disbursements of counsel for the Corporation and
of its independent public accountants, including the expenses of any
special audits and/or "cold comfort" letters required by or incident to
such performance and compliance, and the reasonable fees and
disbursements of one firm of counsel retained by the holders of
Registrable Securities being registered, but excluding underwriting
discounts and commissions and applicable transfer and documentary stamp
taxes, if any, which shall be borne by the seller of the securities in
all cases.
"Repurchase" means any payment or distribution on account of
the purchase, redemption, defeasance (including in-substance or legal
defeasance) or other retirement of any Securities of the Corporation, or
of any warrant, option or
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C/M: 11115.0009 378435.1
<PAGE>
other right to acquire Securities, or any other payment or
distribution made in respect thereof.
"SEC" means the United States Securities and Exchange
Commission, or any successor or similar agency performing comparable
functions.
"Securities" shall mean any debt or equity securities of the
Corporation, whether now or hereafter authorized, and any instrument
convertible into or exchangeable for Securities or a Security or rights
to acquire Securities or a Security. "Security" shall mean one of the
Securities.
"Securities Act" shall mean as of any date the Securities Act
of 1933, as amended, or any similar Federal statute then in effect.
"Stock" shall include any and all shares, interests or other
equivalents (however designated) of, or participations in the capital
stock of a corporation of any class.
"Subsidiary" shall mean any corporation at least 50% of whose
outstanding Voting Stock shall at the time be owned directly or
indirectly by the Corporation or by one or more Subsidiaries or by the
Corporation and one or more Subsidiaries.
"Underwritten Offering" has the meaning set forth in Section
6.1(a)(ii).
"Voting Stock", as applied to the Stock of any corporation,
shall mean Stock of any class or classes (however designated) having
ordinary voting power for the election of a majority of the members of
the Board of Directors (or other governing body) of such corporation,
other than Stock having such power only by reason of the happening of a
contingency.
"Warrants" shall mean the Warrants issued pursuant to the
Exchange Agreement, including, without limitation, this Warrant.
"Warrant Price" shall mean the price specified in the first
paragraph of this Warrant and such other prices as shall result from the
adjustments specified in Section 4 hereof.
"Warrant Stock" shall mean Class A Common issuable upon
exercise of any Warrant or Warrants.
"Warrant Share Number" shall mean at any time the aggregate
number of shares of Warrant Stock which may at such time be purchased
upon exercise of this Warrant, after giving effect to all prior
adjustments to such number made or required to be made under the terms
hereof.
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C/M: 11115.0009 378435.1
<PAGE>
8. Amendment and Waiver. Any term, covenant, agreement or condition
in this Warrant may be amended, or compliance therewith may be waived (either
generally or in a particular instance and either retroactively or
prospectively), by a written instrument or written instruments executed by the
Corporation and the Holders of Warrants exercisable for at least a majority of
Warrant Stock then unissued; provided, however, that no such amendment or
waiver shall reduce the Warrant Share Number, increase the Warrant Price,
shorten the period during which the Warrants may be exercised or modify any
provision of this Section 8 without the consent of the Holders of all Warrants
then outstanding.
9. Governing Law. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CHOICE OF LAW PRINCIPLES OF SUCH STATE).
Dated: September 14, 1995
AMPEX CORPORATION
[CANCELLED]
By: /s/ Craig L. McKibbin
Craig L. McKibben
Vice President
Attest:
/s/ Joel D. Talcott
Joel D. Talcott
Secretary
C/M: 11115.0009 378435.1
<PAGE>
SUBSCRIPTION
The undersigned ___________________, pursuant to the provisions of the within
Warrant, hereby elects to purchase _________ shares of Class A Common Stock of
Ampex Corporation covered by the within Warrant.
Dated: _______________ Signature ________________________
Address _____________________________________________________
ASSIGNMENT
FOR VALUE RECEIVED, __________________ hereby sells, assigns and transfers
unto _______________ the within Warrant and all rights evidenced thereby and
does irrevocably constitute and appoint __________________, attorney, to
transfer the said Warrant on the books of the within named Corporation.
________________________________
Dated: _______________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED, ___________________ hereby sells, assigns and transfers
unto _____________________ the right to purchase ____________ shares of
Warrant Stock evidenced by the within Warrant together with all rights
therein, and does irrevocably constitute and appoint _______________________,
attorney, to transfer that part of the said Warrant on the books of the within
named Corporation.
________________________________
Dated: _______________
FOR USE BY THE CORPORATION ONLY:
This Warrant No. W-_______ cancelled (or transferred or exchanged) this _____
day of ________________, 19__, ___________ shares of Class A Common Stock
issued therefor in the name of __________________, Warrant No. W-_____ issued
for ______________ shares of Class A Common Stock in the name of
__________________.
C/M: 11115.0009 378435.1
<PAGE>
Schedule to Exhibit 4.5
No. of Shares
Subject to
Selling Securityholder: Registration Rights
Equitable Capital Private Income 95,142
and Equity Partnership II, L.P.
Equitable Capital Partners, L.P. 45,667
Equitable Capital Partners 35,882
(Retirement Fund), L.P.
Mellon Bank, N.A., as trustee for 67,956
First Plaza Group Trust
C/M: 11115.0009 378435.1
BATTLE FOWLER LLP
A LIMITED LIABILITY PARTNERSHIP
75 East 55th Street
New York, New York 10022
(212) 856-7000
(212) 856-7000
(212) 339-9150
June 24, 1996
Ampex Corporation
500 Broadway
Redwood City, California 94063
Re: Registration of 271,830 Class A Common Stock
Ladies and Gentlemen:
We have acted as counsel for Ampex Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
shelf registration statement on Form S-3 (the "Registration Statement"),
pursuant to which the Company proposes to register for sale by the holders
thereof up to 271,830 shares (the "Class A Shares") of the Company's Class A
Common Stock, par value $0.01 per share ("Class A Stock"). Capitalized terms
used and not defined herein shall have the meanings given to them in the
Registration Statement.
For purposes of this opinion, we have examined originals or
copies of the following:
1. Registration Statement, as filed with the Securities
and Exchange Commission (the "Commission") on June 24, 1996;
2. The Amended and Restated Certificate of Incorporation
of the Company, as amended to date, incorporated by reference as an
exhibit to the Registration Statement (the "Certificate of
Incorporation");
372715.3
<PAGE>
2
Ampex Corporation
June 24, 1996
3. By-Laws of the Company, as amended to date,
incorporated by reference as an exhibit to the Registration
Statement (the "By-Laws");
4. The cancelled Warrant Certificates issued by the Company to
each of the Selling Stockholders on or about September 14, 1995, representing
warrants to purchase the Class A Shares, pursuant to which each of the Selling
Stockholders was granted registration rights to cause the Company the register
the Class A Stock;
5. Form of Class A Stock Certificate incorporated by
reference as an exhibit to the Registration Statement;
6. Records of corporate proceedings of the Company as
provided to us by an officer of the Company; and
7. Such other documents as we have deemed necessary as
a basis for rendering the opinions herein expressed.
In rendering the opinions herein expressed we have assumed the
genuineness of all signatures, the authenticity of all documents, instruments
and certificates submitted to us as originals, the conformity with the original
documents, instruments and certificates of all documents, instruments and
certificates submitted to us as copies and the legal capacity to sign of all
individuals executing such documents, instruments and certificates (the
"Documents"). In addition, we have assumed, other than with respect to those
signing on behalf of the Company, that all signatories of any Documents have
been duly authorized, pursuant to all applicable laws, regulations, corporate
charters and governing documents, to execute said Documents. As to facts
material to the opinions in this letter, we have relied upon representations of
the Company, including, without limitation, the representations made in factual
certificates furnished to us by officers and agents of the Company, and upon
representations made in any of the other Documents.
We are not admitted to practice in any jurisdiction but the State
of New York and we do not express any opinion as to the laws of states or
jurisdictions other than the State of New York and matters of federal law and
Delaware corporate law. No opinion is expressed as to the effect that the laws
of any other jurisdiction may have upon the subject matter of the opinions
expressed herein under conflicts of laws principles or otherwise.
372715.3
<PAGE>
3
Ampex Corporation
June 24, 1996
The opinions in this letter are subject to the following
additional limitations, qualifications and exceptions: (i) the effect and
application of bankruptcy, insolvency, reorganization, moratorium and other laws
now or hereafter in effect relating to or affecting creditors' rights generally;
(ii) fraudulent conveyance and transfer laws; (iii) the effect and application
of general principles of equity, whether considered in a proceeding in equity or
at law, including limitations on the availability of equitable remedies; (iv)
the limitation that no opinion is expressed as to the enforceability of choice
of law provisions; (v) limitations imposed by reason of generally applicable
public policy principles or considerations, including limitations resulting from
such public policy principles or considerations as to enforceability of rights
to indemnity and contribution; and (vi) the unenforceability of any provision
requiring the payment of attorneys' fees, except to the extent that a court
determines such fees to be reasonable, or of liquidated damages, except to the
extent that a court determines such damages not to be a penalty.
On the basis of and in reliance upon the foregoing, and subject
to the foregoing limitations, qualifications and exceptions, we are of the
opinion that the Class A Shares have been duly authorized and validly issued,
and are fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the references to this firm under the caption
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
In giving this consent, we do not admit thereby that we come within the category
of persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Commission.
Very truly yours,
/s/ Battle Fowler LLP
372715.3
Exhibit 23.1
COOPERS & LYBRAND
Coopers & Lybrand L.L.P.
a professional services firm
333 Market Street
San Francisco, California 94105-2119
telephone (415) 957-3000
Facsimile (415) 957-3394
(415) 957-3372
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Form S-3 of Ampex
Corporation of our report, dated March 8, 1996, on our audit of the consolidated
financial statements and financial statement schedule of Ampex Corporation,
which report appears in the Annual Report on Form 10-K filed by Ampex
Corporation for its fiscal year ended December 31, 1995. We also consent to the
reference to our firm under the caption "Experts".
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
San Francisco, California
June 21, 1996
