As filed with the Securities and Exchange Commission on June 10, 1996
Registration No. __________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
Registration Statement under the Securities Act of 1933
Ampex Corporation
(Exact name of Registrant as specified in its charter)
Delaware 13-3667696
(State of incorporation) (I.R.S. employer identification number)
500 Broadway
Redwood City, California 94063-3199
(Address of principal executive offices, including zip code)
Ampex Corporation 1992 Stock Incentive Plan
(Full title of the plan)
Joel D. Talcott, Esq.
Ampex Corporation
500 Broadway, M.S. 3-36
Redwood City, California 940633-3199
(415) 367-3330
(Name, address and telephone number of agent for service)
Copies to:
David D. Griffin, Esq.
Battle Fowler
75 East 55th Street
New York, New York 10022
Calculation of Registration Fee
<TABLE>
- ------------------------------------------------------------------------------------------------
<CAPTION>
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered Maximum Maximum Registration Fee
Offering Price Aggregate Offering
Per Share Price
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A 2,000,000 shares (1) ($12.69 (1) $25,380,000 (1) $8,752
Common Stock
- ------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents additional shares available for grants of awards under the 1992
Stock Incentive Plan as of June 7, 1996. The offering price information is
estimated as of June 6, 1996, pursuant to Rule 457, solely for the purpose
of calculating the registration fee.
374104.1
<PAGE>
This registration statement relates to 2,000,000 shares of Class A Common Stock,
$0.01 par value per share (the "Class A Stock") of the Registrant, reserved for
issuance under the Ampex Corporation 1992 Stock Incentive Plan (the "Plan"). On
April 12, 1994, the Registrant filed a Form S-8 Registration Statement (file no.
33-77664) to register 750,000 shares of Class A Stock reserved for issuance
under the Plan, and on May 23, 1995, the Registrant filed a Form S-8
Registration Statement (file no. 33-92640) to register an additional 1,500,000
shares of Class A Stock reserved for issuance under the Plan. The contents of
such Registration Statements are incorporated herein by reference.
Item 8 Exhibits
4.03 Registrant's 1992 Stock Incentive Plan, as amended through June 7, 1996
5.01 Opinion of Counsel
23.01 Consent of Counsel (included in Exhibit 5.01)
23.02 Consent of Coopers & Lybrand L.L.P.
24.01 Power of Attorney (see page 3)
374104.1
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Edward J. Bramson and Craig L.
McKibben or either of them, with full power to act, his attorney-in-fact, with
the power of substitution for him in any and all capacities, to sign any or all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
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 of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Redwood City, State of California, on June 7, 1996.
AMPEX CORPORATION
By: /s/ Craig L. McKibben
Craig L. McKibben
Vice President, Treasurer and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
Principal Executive Officer:
/s/ Edward J. Bramson Chairman and Chief Executive June 7, 1996
- -------------------------- Officer
Edward J. Bramson
Principal Financial Officer
and Principal Accounting
Officer:
/s/ Craig L. McKibben Vice President, Treasurer June 7, 1996
- --------------------------- and Chief Financial Officer
Craig L. McKibben
Directors:
/s/ Edward J. Bramson Director June 7, 1996
- ----------------------------
Edward J. Bramson
- ----------------------------- Director June 7, 1996
Douglas T. McClure Jr.
/s/ Craig L. McKibben Director June 7, 1996
- ----------------------------
Craig L. McKibben
/s/ Peter Slusser Director June 7, 1996
- ----------------------------
Peter Slusser
/s/ William A. Stolzfus Director June 7, 1996
- ----------------------------
William A. Stolzfus, Jr.
374104.1
3
<PAGE>
EXHIBIT INDEX
Exhibit Number Description Page
4.03 Registrant's 1992 Stock Incentive Plan, 5
as amended through June 7, 1996
5.01 Opinion of Counsel 14
23.01 Consent of Counsel (included in Exhibit 5.01) 14
23.02 Consent of Coopers & Lybrand L.L.P. 15
24.01 Power of Attorney (see page 3) 3
374104.1
4
EXHIBIT 4.03
AMPEX CORPORATION
1992 STOCK INCENTIVE PLAN
as amended through June 7, 1996
1. Purpose
The purpose of this plan (the "Plan") is to secure for Ampex
Corporation (the "Company") and its stockholders the benefits arising from the
ownership of stock options and stock appreciation rights by directors and key
employees of the Company and its parent and subsidiary corporations, who are
expected to contribute to the Company's future growth and success.
2. Types of Plan Benefits
(a) Types of Awards. Subject to Section 3(a), the Company may in its
sole discretion grant, with respect to the Company's Class A Common Stock
("Common Stock"), options ("Options") and/or stock appreciation rights
("Rights") to eligible persons, as authorized by action of the Board of
Directors of the Company (or a Committee designated by the Board of Directors).
As used in the Plan, an "Award" shall mean an Option or a Right or both and an
"Award Owner" shall mean the owner of an Option or a Right or both.
(i) Types of Options. Options granted pursuant to the Plan may be
either incentive stock options ("Incentive Stock Options") meeting the
requirements of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), or non-statutory options ("Non-Statutory Stock Options"), which
are not intended to or do not meet the requirements of Code Section 422.
(ii) Types of Rights. Rights granted pursuant to the Plan shall
entitle the Rights holder to receive cash or Common Stock equal to the
appreciation in the value of the shares of the Common Stock of the Company as
provided in Section 7. Rights may be either an alternative to or in tandem with
the exercise of all or any portion of an Option granted to a Rights holder
("Tandem Rights") or independent of any Options granted hereunder ("Non-Tandem
Rights").
3. Administration
(a) General Provisions. The Plan will be administered by the Board of
Directors of the Company (the "Board"), whose construction and interpretation of
the terms and provisions of the Plan shall be final and conclusive. Except for
all decisions with respect to Awards for officers and directors subject to
Section 16 of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
which shall be made only by a committee meeting the requirements set forth in
Section 3(b), the Board may in its sole discretion grant Options to purchase
shares of the Company's Common Stock, issue Rights to the appreciation in the
value of such shares, and issue shares upon exercise of such Options and Rights,
and/or distribute cash upon exercise of such Options and Rights, as provided in
the Plan. The Board shall have authority, subject to the express provisions of
the Plan, to construe the respective Awards agreements and the Plan; to
prescribe, amend and rescind rules and regulations relating to the Plan; to
determine the terms and provisions of the respective Award agreements, which
need not be identical; to advance the lapse of any waiting or installment
periods and exercise dates; and to make all other determinations in the judgment
of the Board of Directors necessary or desirable for the administration of the
Plan. The Board may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Award agreement in the manner and to the
extent it shall deem expedient to carry the Plan into effect and it shall be the
sole and final judge of such expediency. No director shall be liable
374105.1
<PAGE>
for any action or determination taken or made under or with respect to the Plan
or any Award in good faith. The Board may, to the full extent permitted by law,
delegate any or all of its powers under the Plan to a committee (the
"Committee") appointed by the Board, and if the Committee is so appointed all
references to the Board in the Plan shall mean and relate to such Committee
unless the context requires otherwise.
(b) Disinterested Committee under Rule 16b-3. None of the members of
the Committee shall receive, while serving on the Committee, or during the
one-year period preceding appointment to the Committee, a grant or award of
equity securities of the Company under (i) the Plan or (ii) any other plan of
the Company or its affiliates under which the participants are entitled to
acquired stock, stock options, stock bonuses, related rights or stock
appreciation rights of the Company or any of its affiliates, other than pursuant
to transactions in any such other plan that do not disqualify a director from
being a disinterested person under Rule 16b-3 (as defined in Section 17(d)). The
limitations set forth in this Section 3(b) shall automatically incorporate any
additional requirements that may in the future be necessary for the Plan to
comply with Rule 16b-3.
4. Eligibility
(a) Generally
(i) Except as provided in Section 4(b), Awards shall be granted
only to persons who are, at the time of grant, officers, employees, directors,
consultants, advisors or other service providers (provided that any consultant,
advisor or service provider must render bona fide services not in connection
with the offer and sale of securities in a capital-raising transaction) of the
Company or of any Parent Corporation or Subsidiary (as defined in Sections 17(c)
and 17(e)).
(ii) An eligible individual may be granted Incentive Stock
Options, Non-Statutory Stock Options, Tandem Rights and/or Non-Tandem Rights. A
person who has been granted an Award may, if he or she is otherwise eligible, be
granted one or more additional Awards if the Board shall so determine.
(b) Incentive Stock Options. No person shall be granted any Incentive
Stock Option under the Plan unless at the time such Option is granted, such
person is an employee of the Company, or of any Parent Corporation or
Subsidiary, and does not own, directly or indirectly, Common Stock of the
Company possessing more than 10% of the total combined voting power of all
classes of stock of the Company or of any Parent Corporation or Subsidiary (a
"10% Stockholder"), unless the requirements of Section 6(d)(i) are satisfied.
(c) Limit on Awards. Notwithstanding any other provisions of the Plan,
the maximum number of shares with respect to which Awards may be granted to any
individual during any single fiscal year (the "Individual Award Limit") shall be
1,663,645 shares (subject to adjustment as provided in Sections 13 and 14),
which represents five percent of the Common Stock of the Company that was
outstanding on May 19, 1995. To the extent required by Section 162(m) of the
Code or the regulations thereunder, in applying the Individual Award Limit with
respect to a participant, (i) if an Award is cancelled, the cancelled Award
shall continue to count against the Individual Award Limit; and (ii) if, after
grant, the exercise price of an Award is reduced, the transaction shall be
treated as the cancellation of the Award and a grant of a new Award, and both
the Award that is deemed cancelled and the new Award shall count against the
Individual Award Limit.
5. Stock Subject to Plan
Subject to adjustment as provided in Sections 13 and 14 below, the
maximum number of shares of Common Stock of the Company that may be issued
pursuant to Awards granted under the Plan is 4,250,000 shares. Shares issued
pursuant to the Plan may be treasury shares of the Company. The Company shall
have no obligation to issue unauthorized shares in respect of Awards. If Awards
granted under the Plan shall expire or terminate for any reason without having
been exercised in full, the shares subject to the unexercised portions of such
Awards shall again be available for subsequent Awards grants under the Plan.
Stock issuable upon
2
374105.1
<PAGE>
exercise of Awards granted under the Plan may be subject to such restrictions on
transfer, repurchase rights or other restrictions as shall be determined by the
Board.
6. Options
(a) Forms of Option Agreements. As a condition to the grant of an
Option under the Plan, each recipient of an Option shall execute an Option
Agreement, substantially in the form of Exhibit A to the Plan (in the case of
Incentive Stock Options) or Exhibit B to the Plan (in the case of Non-Statutory
Stock Options). The Option Agreement may be in such other form not inconsistent
with the Plan as shall be specified by the Board of Directors at the time such
Option is granted.
(b) Purchase Price. No consideration is to be paid for the grant of an
Option. The purchase price per share of stock deliverable upon the exercise of
an Option shall be determined by the Board on the date such Option is granted;
provided, however, that (i) in the case of an Incentive Stock Option, the
exercise price shall not be less than 100% of the Fair Value (as defined in
Section 17(b)) of such stock, as determined by the Board at the grant of such
Option, (ii) in the case of a Non-Statutory Stock Option, the exercise price
shall not be less than 85% of the Fair Value, and (iii) in the case of any
Option granted to a 10% Stockholder, the exercise price shall not be less than
110% of the Fair Value.
(c) Payment of Exercise Price. Payment of the exercise price of an
Option shall be in cash (by check) or, in the sole discretion of the Board and
to the extent authorized in the Option Agreement, in any of the following
methods or any combination thereof: (i) by surrender of shares of fully paid
Common Stock of the Company with a Fair Value equal to the aggregate exercise
price; (ii) by waiver of compensation owed by the Company to the Option holder;
(iii) through a "same-day sale" commitment from the Option holder and an NASD
broker; (iv) through a "margin" commitment from the Option holder and an NASD
broker; (v) by the surrender of other Options held by the Option holder (other
than Incentive Stock Options) to purchase Common Stock of the Company, to the
extent of the "spread" on the surrendered Options (the "spread" being the amount
by which the Fair Value of the shares covered by the surrendered Options on the
exercise date exceeds the aggregate exercise price of the surrendered Options);
(vi) by tender of a full-recourse promissory note bearing interest at a rate and
coming due in installments as determined by the Board; or (vii) by any other
lawful means.
(d) Incentive Stock Options. Options granted under the Plan that are
intended to be Incentive Stock Options shall be specifically designated as
intending to be Incentive Stock Options and shall be subject to the following
additional terms and conditions:
(i) 10% Stockholder. If any employee to whom an Incentive Stock
Option is to be granted under the Plan is at the time of the grant of such
Option a 10% Stockholder, then the following special provisions shall be
applicable to the Incentive Stock Option granted to such individual: (x) the
exercise price per share of the Common Stock subject to such Incentive Stock
Option shall not be less than 110% of the Fair Value of one share of Common
Stock at the time of grant; and (y) the option exercise period shall not exceed
five years from the date of grant.
(ii) Dollar Limitation. Common Stock of the Company that is
acquired pursuant to the exercise of an Incentive Stock Option granted to an
employee under the Plan shall be deemed to be acquired pursuant to the exercise
of an incentive stock option under Code Section 422, only to the extent that the
aggregate Fair Value (determined as of the respective date or dates of grant) of
the Common Stock with respect to which such Incentive Stock Option, and all
other incentive stock options that are granted to such employee under the Plan
(and under any other incentive stock option plans of the Company, and any Parent
Corporation and any Subsidiary) are exercisable for the first time by such
employee in any one calendar year, does not exceed $100,000. To effectuate the
provisions of this Section 6(d)(ii), the Board may designate the shares of
Common Stock that are treated as acquired pursuant to the exercise of an
Incentive Stock Option by issuing a separate certificate for such shares and
identifying such certificates as Incentive Stock Option stock in its stock
3
374105.1
<PAGE>
transfer records. Except as modified by the preceding provisions of this Section
6(d) all the provisions of the Plan applicable to Options shall be applicable to
Incentive Stock Options granted hereunder.
(e) Non-Statutory Stock Options. Upon the exercise by an Award Owner
of a Non-Statutory Stock Option, the Board may, in its discretion, make a
payment in cash, in lieu of delivery of one or more shares of Common Stock, in
an amount per share equal to the Fair Value, on the effective date of exercise,
of such share or shares. If, upon exercise, the Board has determined to pay cash
in lieu of one or more shares, any portion of the purchase price of such shares
that has not previously been paid by the Award Owner shall be offset against the
amount payable by the Company.
7. Rights
(a) Forms of Rights Agreement. As a condition to the grant of Rights
under the Plan, each Rights holder shall execute a Rights Agreement,
substantially in the form of Exhibit C to the Plan (in the case of Tandem
Rights) or Exhibit D to the Plan (in the case of Non-Tandem Rights), or in such
other form not inconsistent with the Plan, as shall be specified by the Board at
the time such Rights are granted.
(b) Purchase Price. No consideration is to be paid for the grant of
a Right.
(c) Entitlement Under Each Right. To the extent the holder of a Right
is vested in such Right (as provided in the Rights Agreement), each Right
granted shall entitle the Right holder upon exercise of the Right to a lump sum
payment in cash, for each share covered by the Right, equal to the excess, if
any, of (i) the Fair Value, on the effective date of exercise, of one share of
Common Stock over (ii) the Fair Value, on the date of grant, of such share;
provided, however, in the sole discretion of the Board, at any time prior to
settlement of the Right, (A) up to 100% of the payment may be made in shares of
Common Stock based on the Fair Value on the exercise date of such shares of
Common Stock, and (B) the remainder in a lump sum cash payment. Any lump sum
cash payments may be made in installments with interest, at a rate and over a
period determined by the Board.
8. Exercise Period
(a) Generally. Each Award shall expire on such date as the Board shall
determine on the date such Award is granted, but in no event after the
expiration of ten years from the date on which such Award is granted (or five
years in the case of Incentive Stock Options described in Section 6(d)(i)), and
in all cases each Award shall be subject to earlier termination as provided in
the Plan.
(b) Effect of Termination of Employment. No Award may be exercised
unless, at the time of such exercise, the Award Owner is, and continuously since
the date of grant of his or her Award, has been an employee and/or a director of
one or more of the Company, a Parent Corporation or a Subsidiary, except that
subject to Section 10 and if and to the extent the Award agreement so provides:
(i) the Award may be exercised within the period of three months
after the date the Award Owner ceases to be an employee or director of any of
the foregoing entities (or within such lesser period as may be specified in the
Award agreement);
(ii) if the Award Owner dies while an employee or a director of
the Company, a Parent Corporation or a Subsidiary or within three months after
the Award Owner ceases to be such an employee or director, the Award may be
exercised by the administrator of the Award Owner's estate, or by person to whom
the Award is transferred by will or the laws of descent and distribution, within
the period of one year after the date of death (or within such lesser period as
may be specified in the Award agreement); and
(iii) if the Award Owner becomes disabled (within the meaning of
Section 22(e)(3) of the Code) while an employee or a director of the Company, a
Parent Corporation or a Subsidiary, the Award may
4
374105.1
<PAGE>
be exercised within the period of one year after the date the Award Owner ceases
to be an employee or director of any of the foregoing entities because of such
disability (or within such lesser period as may be specified in the Award
agreement);
provided, however, that in no event may any Award be exercised
after the expiration date of the Award. Any Award or portion thereof that is
vested on or before the date on which the Award Owner ceases to be an employee
or director of the Company (the "Termination Date"), but not exercised during
the applicable time period specified above (or any shorter period specified in
the Award agreement) shall be deemed terminated at the end of the applicable
time period for purposes of Section 5. Any Award or portion thereof that is not
vested, and will not become vested based on the applicable vesting schedule, on
or before the Termination Date shall be deemed terminated for purposes of
Section 5 on the earlier of (i) the Termination Date or (ii) the date of the
employee's last day of active work at the Company (which, in the case of a
lay-off, shall be the effective date of the lay-off).
(c) Effective Date of Exercise. Subject to the provisions of Sections
8(a), 8(b) and 10, the exercise of an Award by an Award Owner shall take effect
on the date of receipt by the Company of written notice of exercise by the Award
Owner, provided such receipt is followed promptly by receipt of any required
payment for such exercise. Notwithstanding the foregoing, if (i) such Award is a
Right owned by an officer or director of the Company and is being settled
partially or fully in cash, (ii) such date of receipt of the exercise notice
occurs outside of the period beginning on the third business day following the
date of release of the financial data specified in paragraph (e)(1)(ii) of Rule
16b-3 and ending on the twelfth business day following such date, and (iii) the
Company has not received a no-action letter from the Securities and Exchange
Commission (and has not otherwise concluded) that such Award or class of Awards
is exempt from the exercise period requirements of paragraph (e)(3) of Rule
16b-3, the exercise of the Award shall take effect as of the first day of the
period described in subparagraph (ii) next following the date of such receipt.
9. Assignability of Awards
To the extent required by Rule 16b-3, or for registration on Form S-8
under the Securities Act of 1933, as amended (the "1933 Act"), no Award granted
under the Plan shall be assignable or transferable by the person to whom it is
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution; provided that if Rule 16b-3 and the requirements
for registration on Form S-8 are subsequently amended to permit broader
transferability of Options, Awards shall be transferable to the extent provided
in the Award agreement covering the Award, and the Board shall have discretion
to amend any such outstanding Award to provide for broader transferability of
the Award as the Board may authorize within the limitations of Rule 16b-3 and
the requirements for registration on Form S-8. Notwithstanding the foregoing, if
required by the Code, each Incentive Stock Option under the Plan shall be
transferable by the holder thereof only by will or the laws of descent and
distribution and, during the Option holder's lifetime, shall be exercisable only
by the Option holder. In the event of any transfer of an Award hereunder that is
permitted by Rule 16b-3 and the requirements for registration on Form S-8, the
transferee shall be entitled to exercise the Award in the same manner and only
to the same extent as the Award holder (or his or her personal representative or
the person who would have acquired the right to exercise the Award by bequest or
intestate succession) would have been entitled to exercise the Award under
Sections 6, 7 and 8 had the Award not been transferred.
10. Vesting of Awards
An Option or Right may be exercised, and payment shall be made upon
exercise of such Award, only to the extent that such Award has vested. Unless
otherwise specified by the Board at the time an Award is granted, an Award shall
vest based on the collective number of years of service with or for the Company,
the Parent Corporation and Subsidiaries, in accordance with the schedule or
terms set forth in the Award agreement executed by the Award Owner and a duly
authorized officer of the Company. Notwithstanding the foregoing, unless the
Board specifically authorizes a different vesting schedule with respect to an
Award, an Award shall
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374105.1
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become exercisable based on the number of full years of service that such Award
Owner has completed since the Award's date of grant, in accordance with the
following schedule:
===============================================================================
Number of Years of Percentage of
Service Since Date of Grant Award Available for
--------------------------- Exercise (Cumulative)
---------------------
1 year 25%
2 years 50%
3 years 75%
4 or more years 100%
The Board, in its discretion, may establish a different vesting
schedule at the time an Award is granted.
Notwithstanding anything to the contrary in this Section 10, upon the
exercise of an Award by a director or officer of the Company who is subject to
Section 16 of the 1934 Act, the Company shall determine if such exercise
complies with Rule 16b-3(c)(1). If such exercise does not so comply, such
exercise shall not be given effect unless (i) the Company, within 5 days of
receipt of the notice of exercise, notifies the Award Owner, in writing, of such
non-compliance and (ii) the Award Owner responds in writing, in substance and
form satisfactory to the Company, within 5 days of receipt of the Company's
notification, that such exercise is to remain effective.
11. General Restrictions
(a) Award Owner Representations. The Company may require any person to
whom a Award is granted, as a condition of exercising such Award, to give such
written assurances, in substance and form satisfactory to the Company, as the
Company deems necessary or appropriate in order to comply with applicable
federal and state securities laws. If the Award Owner is a director or officer
who is subject to Section 16 of the 1934 Act, the Company may require that such
Award owner give written assurances, in substance and form satisfactory to the
Company, that such person has consulted with competent counsel as to the
application of Section 16(b) of the 1934 Act to such exercise.
(b) Stock Certificate Legends. Certificates representing shares issued
upon exercise of the Award shall bear such legends as are deemed appropriate by
legal counsel to the Company, unless the Award Owner provides a written opinion
of legal counsel, satisfactory to the Company, that any such legend is not
required.
(c) Compliance With Securities Laws
(i) Each Award shall be subject to the requirement that, if at any
time counsel to the Company shall determine that the listing, registration or
qualification of such Award or the shares subject to such Award upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, is necessary as a condition of,
or in connection with the grant or exercise of such Award or the issuance or
purchase of shares thereunder, such Award shall not be effective or may not be
accepted or exercised in whole or in part (as applicable) unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained on conditions acceptable to the Board. Nothing herein shall be deemed
to require the Company to apply for or to obtain such listing, registration or
qualification.
(ii) The Company shall provide each Award Owner with such
information, statements, discussions and analyses with respect to the Company in
such manner and at such times as may be required under state or federal
securities laws.
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12. Rights as a Stockholder
The Award Owner shall have no rights as a stockholder with respect to
any shares covered by the Award until the date on the stock certificate issued
to him or her for such shares. Except as otherwise expressly provided in the
Plan, no adjustment shall be made for dividends or other rights for which the
record date is prior to the date on such stock certificate
13. Recapitalization
In the event that the outstanding shares of Common Stock of the
Company are changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of any recapitalization,
reclassification, stock split, stock dividend, combination or subdivision,
appropriate adjustment shall be made in the number and kind of shares available
under the Plan and under any Awards granted under the Plan (including
appropriate adjustment to applicable exercise prices). Such adjustment to
outstanding Awards shall be made without change in the total value applicable to
the unexercised portion of such Awards as of the date of the adjustment. No such
adjustment shall be made with respect to an Incentive Stock Option that would,
within the meaning of any applicable provisions of the Code, constitute a
modification, extension or renewal of any Option or a grant of additional
benefits to the holder of an Option.
14. Reorganization
In the event (i) the Company is merged or consolidated with another
corporation other than an Affiliate, and the Company is not the surviving
corporation, or (ii) all or substantially all of the assets or more than 50% of
the outstanding voting stock of the Company is acquired by any other corporation
other than an Affiliate, or (iii) there is a reorganization or liquidation of
the Company, the Board of Directors of the Company, or the board of directors of
any corporation assuming the obligations of the Company, shall, as to all
outstanding Awards, either (x) in the case of a merger, consolidation or
reorganization of the Company, make appropriate provision for the protection of
any such outstanding Awards by the substitution on an equitable basis of
appropriate stock of the Company, or of the merged, consolidated or otherwise
reorganized corporation that will be issuable in respect of the shares of Common
Stock of the Company (provided that no additional benefits shall be conferred
upon Award Owners as a result of such substitution), or (y) upon written notice
to the Award Owners, provide that all vested unexercised Awards must be
exercised within a specified number of days of the date of such notice or they
will be terminated, or (z) upon written notice to the Award Owners, provide that
all vested unexercised Awards shall be purchased by the Company or successor
within a specified number of days of the date of such notice at a price equal to
the value the Award Owners would have received if they then exercised all their
vested Awards and immediately received full payment in respect of such exercise,
as determined in good faith by the Board. In any such case, the Board may, in
its discretion, accelerate the exercise dates of all or any individual
outstanding Awards; provided, however, the Company may not accelerate the
exercise dates of any outstanding Awards to an Award Owner to the extent such
acceleration will cause the disallowance of a deduction under the "golden
parachute payment" rules under Section 280G of the Code with respect to any
payment to the Award Owner under this Plan or otherwise.
15. No Special Employment Rights
Nothing contained in the Plan or in any Award granted under the Plan
shall confer upon any Award Owner any right with respect to the continuation of
his or her employment by the Company (or any Parent Corporation or Subsidiary)
or interfere in any way with the right of the Company (or any Parent Corporation
or Subsidiary), subject to the terms of any separate employment agreement to the
contrary, at any time to terminate such employment or to increase or decrease
the compensation of the Award Owner from the rate in existence at the time of
the grant of an Award. Whether an authorized leave of absence, or absence in
military or government service, shall constitute termination or cessation of
services for purposes of this Plan shall be determined by the Board.
7
374105.1
<PAGE>
16. Other Employee Benefits
The amount of any income deemed to be received by an Award Owner as a
result of the exercise of an Award or the sale of shares received upon such
exercise will not constitute "compensation" or "earnings" with respect to which
any other benefits of such person are determined, including without limitation
benefits under any pension, profit sharing, life insurance or salary
continuation plan.
17. Definitions
(a) Affiliate. The term "Affiliate" shall mean a corporation or other
person that, at the time of reference, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, the Company.
(b) Fair Value. The term "Fair Value" of a share of Common Stock shall
mean (i) if the Common Stock is not traded on a national securities exchange or
"over the counter," the fair value, as determined in good faith by the Board
using any reasonable valuation method without application of a discount to
reflect illiquidity; (ii) if the Common Stock is traded on a national securities
exchange, the closing price for such stock on the day immediately preceding the
date of determination or if there is no closing price on such date, the last
preceding closing price, or (iii) if the Common Stock is traded
"over-the-counter," the closing price on the business day immediately preceding
the date of determination, or if a closing price is not available, the average
of the highest bid and the lowest offer reported on the business day immediately
preceding the date of determination.
(c) Parent Corporation. The term "Parent Corporation" shall mean any
corporation (other than the Company) in an unbroken chain of corporations ending
with the Company if each of the corporations other than the Company owns stock
possessing 50% or more of the combined voting power of all classes of stock in
one of the other corporations in such chain. The status of a corporation as a
Parent Corporation shall be determined as set forth above at the time of: (1)
the grant of the Award, for purposes of Sections 4, 6(d)(i) and 6(d)(ii); (2)
the exercise of the Award, for purposes of Sections 8(b) and 8(b)(i); (3) the
Award Owner's death or disability, as applicable, for purposes of Sections
8(b)(ii) and (iii); and (4) the vesting date, for purposes of Section 10.
(d) Rule 16b-3. The term "Rule 16b-3" shall mean Rule 16b-3
promulgated by the Securities and Exchange Commission pursuant to Section 16 of
the 1934 Act, or any successor rule.
(e) Subsidiary. The term "Subsidiary" shall mean any corporation in an
unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain. The status of a
corporation as a Subsidiary shall be determined as set forth above at the time
of: (1) the grant of the Award, for purposes of Sections 4, 6(d)(i) and
6(d)(ii); (2) the exercise of the Award, for purposes of Sections 8(b) and
8(b)(i); (3) the Award Owner's death or disability, as applicable, for purposes
of Sections 8(b)(ii) and (iii); and (4) the vesting date, for purposes of
Section 10.
18. Amendment of the Plan
(a) General. The Board may at any time and from time to time modify or
amend the Plan in any respect, except that without the approval of the
stockholders of the Company, the Board may not make any amendments that require
approval of the stockholders under Rule 16b-3. As of June 1996, Rule 16b-3
required stockholder approval of amendments that (i) materially increase the
benefits accruing to individuals who participate in the Plan, (ii) materially
increase the maximum number of shares that may be issued under the Plan (except
for permissible adjustments provided in the Plan), or (iii) materially modify
the requirements as to eligibility for participation in the Plan. In addition,
the Board shall not modify or amend the Plan in a manner that would require
stockholder approval under Section 422 of the Code, without obtaining such
stockholder
8
374105.1
<PAGE>
approval, if such amendment would affect the status of any outstanding Incentive
Stock Option as an incentive stock option under Section 422 of the Code. As of
June 1996, Section 422 of the Code required stockholder approval of amendments
that (A) increase the aggregate number of shares that may be issued pursuant to
Incentive Stock Options (except for permissible adjustments provided in the
Plan), or (B) change the designation of employees or the class of employees
eligible to receive Incentive Stock Options. The termination or any modification
or amendment of the Plan shall not, without the consent of an Award Owner,
affect his or her rights under an Award previously granted to him or her. With
the consent of the Award Owners affected, the Board may amend outstanding Award
agreements in a manner not inconsistent with the Plan.
(b) Amendments to Comply with Tax and Securities Laws. Notwithstanding
the provisions of Section 18(a), the Board shall have the right, but not the
obligation, without the consent of the Company's stockholders, to (i) amend or
modify the terms and provisions of the Plan and of any outstanding Incentive
Stock Options granted under the Plan to the extent necessary to qualify any or
all such options for such favorable federal income tax treatment (including
deferral of taxation upon exercise), as may be afforded incentive stock options
under Section 422 of the Code; and (ii) amend or modify the terms and provisions
of the Plan and of any outstanding Award granted under the Plan to the extent
necessary to comply with any securities law to which, in the opinion of counsel
to the Company, the Plan or Award is subject.
19. Withholding
The Company shall have the right to deduct from any distribution of
cash to an Award Holder, any amount equal to the federal, state and local income
taxes and other amounts as may be required by law to be withheld (the
"Withholding Taxes") with respect to any Award. If an Award Holder is to
experience a taxable event in connection with the receipt of shares upon
exercise of an Award (a "Taxable Event"), the Award Holder shall pay the
Withholding Taxes to the Company prior to such issuance. In satisfaction of the
obligation to pay Withholding Taxes, the Award Holder may make a written
election (the "Tax Election"), which may be accepted or rejected by the
Committee, in its sole discretion, to have the Company withhold a portion of the
shares otherwise issuable to the Award Holder having a Fair Value, on the date
preceding the date of issuance, equal to the Withholding Taxes; provided that
any Tax Election by an Award Holder that is subject to Section 16(b) of the 1934
Act shall comply with all requirements necessary to make the Tax Election an
exempt transaction under Section 16(b).
20. Effective Date and Duration of the Plan
(a) Effective Date. The effective date of the Plan is July 16, 1992
(the "Effective Date"), which was the date on which the Board and the
stockholders of the Company approved the adoption of the Plan. Awards may be
granted under the Plan at any time after the Effective Date and before the date
fixed for termination of the Plan, as provided in Section 20(b).
(b) Termination. The Plan shall terminate upon the earlier of (i) the
close of business on the day next preceding the tenth anniversary of the date of
its adoption by the Board, or (ii) the date on which all shares available for
issuance under the Plan shall have been issued pursuant to the exercise of
Awards granted under the Plan. If the date of termination is determined under
(i) above, then Awards outstanding on such date shall continue to have force and
effect in accordance with the provisions of the instruments evidencing such
Awards.
21. Rule 16b-3 Compliance
Transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3. To the extent any provision of the Plan or action by
the Board fails to so comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Board.
9
C374105.1
EXHIBIT 5.01
Ampex Corporation
401 Broadway
Redwood City, California
94063-3199
Telephone 415 367-2011
June 10, 1996
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
Subject: Ampex Corporation
Ladies and Gentlemen
This opinion in provided in connection with a Form S-8 Registration Statement
(the "Registration Statement") being filed by Ampex Corporation (the "Company")
on or about June 10, 1996. The Registration Statement relates to the
registration of 2,000,000 shares of the Company's Class A Common Stock, par
value $0.01 per share (the "Shares"). The Shares have been reserved for issuance
upon exercise of stock options and stock appreciation rights under the Company's
1992 Stock Incentive Plan, as amended through June 7, 1996 (the "Plan").
For purposes of this opinion, I have examined copies of (i) the Registration
Statement, (ii) the Certificate of Incorporation of the Company, as amended to
date, (iii) the By-laws of the Company, as amended to date, (iv) the Plan and
(v) resolutions of the Board of Directors and stockholders of the Company
relating to adoption and amendment of the Plan. In rendering the opinion
expressed herein, I have assumed the genuineness of all signatures, the
authenticity of all documents, instruments and certificates purporting to be
originals, the conformity with the original documents, instruments and
certificates of all documents, instruments and certificates purporting to be
copies, and the legal capacity to sign of all individuals executing documents,
instruments and certificates. I have also assumed that all Shares will be issued
pursuant to the Plan for a purchase price of not less than $0.01 per share.
374106.1
<PAGE>
Based upon and subject to the foregoing and to the effectiveness of the
Registration Statement, I am of the opinion that the Shares that may be issued
by the Company pursuant to the Plan, when issued and paid for in accordance with
the Plan, will be legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, I do not admit thereby that I 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 Securities and
Exchange Commission.
Very truly yours,
/s/ JOEL D. TALCOTT
Joel D. Talcott
Ampex Corporation
Vice President and General Counsel
-2-
374106.1
Exhibit 23.02
COOPERS & LYBRAND L.L.P.
a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Ampex Corporation on Form S-8 of our report, dated March 8, 1996, on our audit
of the consolidated financial statements and financial statement schedule of
Ampex Corporation as of December 31, 1995 and 1994, and for each of the years
ended December 31, 1995, 1994 and 1993, 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" which is incorporated by reference in the Form S-8.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
San Francisco, California
June 10, 1996
Coopers & Lybrand L.L.P., a registered limited liability partnership, is a
member firm of Coopers & Lybrand (international).
374107.1
