As filed with the Securities and Exchange Commission on August 30, 1996
Registration No. 333- 05623
-------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST- EFFECTIVE AMENDMENT NO. 1
TO
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
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This Post- Effective Amendment No. 1 to Form S-8 Registration
Statement amends the Registrant's Registration Statement on Form S-8 (File No.
333-05623) filed by the Registrant on June 10, 1996 to register 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.
On August 22, 1996, the Registrant's Board of Directors elected to
convert the Plan to new Rule 16b-3 adopted by the Commission under the
Securities Exchange Act of 1934, as amended ("New Rule 16b-3), and the
Registrant's Board of Directors amended the Plan, in accordance with the terms
thereof, to conform to New Rule 16b-3. A copy of the Plan, as so amended, is
filed as Exhibit 4.03 hereto.
Item 8 Exhibits
4.03 Registrant's 1992 Stock Incentive Plan, as amended through August 22,
1996, with exhibits.
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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
Post-Effective Amendment No. 1 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on
August 28, 1996.
AMPEX CORPORATION
By: /s/ Edward J. Bramson
Edward J. Bramson
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post- Effective Amendment No. 1 to Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
Principal Executive Officer:
<S> <C>
/s/ Edward J. Bramson Chairman and Chief Executive Officer August 28, 1996
Edward J. Bramson
Principal Financial Officer and
Principal Accounting Officer:
- -------------*-------------- Vice President, Treasurer and August 28, 1996
Craig L. McKibben Chief Financial Officer
Directors:
/s/ Edward J. Bramson Director August 28, 1996
Edward J. Bramson
- -------------*-------------- Director August 28, 1996
Douglas T. McClure, Jr.
- -------------*-------------- Director August 28, 1996
Craig L. McKibben
- -------------*-------------- Director August 28, 1996
Peter Slusser
- -------------*-------------- Director August 28, 1996
William A. Stoltzfus, Jr.
*By /s/ Edward J. Bramson
Edward J. Bramson
Attorney-in-Fact
granted in Registration Statement No. 333- 05623, as originally filed
</TABLE>
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<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit Number Description Page
- -------------- ----------- ----
<C> <C> <C>
4.03 Registrant's 1992 Stock Incentive Plan, as amended through 4
August 22, 1996, with exhibits.
4
</TABLE>
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AMPEX CORPORATION
1992 STOCK INCENTIVE PLAN
as amended through August 22, 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 in accordance with the provisions of Section 3(b)
below, 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 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
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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) Committee of Non-Employee Directors. Except with respect to Awards
to Non-Employee Directors (as defined below), all decisions with respect to
Awards to officers and directors subject to Section 16 of the 1934 Act shall be
made by a Committee that is composed solely of two or more Non-Employee
Directors. A "Non-Employee Director" shall mean a member of the Company's Board
of Directors who: (i) is not currently an officer or employee of the Company or
a parent or subsidiary of the Company, or otherwise currently employed by the
Company or a parent or subsidiary of the Company; (ii) does not receive
compensation, either directly or indirectly, from the Company or a parent or
subsidiary of the Company, for services rendered as a consultant or in any
capacity other than as a director, except for an amount that does not exeeed
the dollar amount for which disclosure would be required pursuant to Item
404(a) of Regulation S-K; (iii) does not possess an interest in any other
transaction for which disclosure would be required pursuant to Item 404(a) of
Regulation S-K; and (iv) is not engaged in a business relationship for which
disclosure would be required under Item 404(a) of Regulation S-K. All decisions
with respect to Awards to any Non-Employee Director shall be made by the
Company's Board of Directors, without the participation or vote of such
Non-Employee Director. 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 of the Company or
of any Parent Corporation or Subsidiary (as defined in Sections 17(c) and
17(e)); 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.
(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
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again be available for subsequent Awards grants under the Plan. Stock issuable
upon 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
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.
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(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 Status as Eligible Participant. 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,
director, consultant, advisor or other eligible service provider of one or more
of the Company, a Parent Corporation or a Subsidiary (in each case, an
"Eligible Participant"), 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 Eligible Participant 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 Eligible Participant or within three
months after the Award Owner ceases to be an Eligible Participant, 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 Eligible Participant, the Award may be exercised
within the period of one year after the date the Award Owner ceases to be an
Eligible Participant 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 Eligible Participant
(the "Termination Date"), but not exercised during the applicable time period
specified above (or
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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 Award Owner'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.
9. Assignability of Awards
To the extent required 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 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 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 the Option holder. In the
event of any transfer of an Award hereunder that is permitted by 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 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:
Percentage of
Number of Years of Award Available for
Service Since Date of Grant 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 who is subject to Section 16 of
the 1934 Act, the Company shall determine if such exercise complies with Rule
16b-3(d)(3). 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.
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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 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.
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
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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 Rights as an Eligible Participant
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 or other status as an Eligible Participant or interfere in
any way with the right of the Company (or any Parent Corporation or
Subsidiary), subject to the terms of any separate agreement to the contrary, at
any time to terminate such employment or other relationship 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.
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.
7
<PAGE>
(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 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 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 or advisable to comply with or conform to any securities
laws 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, the Award Holder shall pay the Withholding Taxes to the
Company prior to such issuance. The Committee, in its sole discretion, may
authorize the Company to permit an Award Holder to satisfy the obligation to
pay Withholding Taxes by having 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 such withholding with respect to an Award Holder that is subject to Section
16(b) of the 1934 Act shall comply with all requirements necessary to make such
withholding 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.
8
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
<PAGE>
EXHIBIT A
Notice of Grant of Stock Options
and Option Agreement AMPEX CORPORATION
ID: 13-3667696
500 Broadway
Redwood City, CA 94063
OPTION NUMBER:
Plan:
1992
ID:
Effective , you have been granted a Incentive Stock Option to buy
shares of
AMPEX CORPORATION (the Company) Class A stock at $ per share.
The total option price of the shares granted is $
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions
of the Company's 1992 Stock Incentive Plan and the Option Agreement, all of
which are attached and made a part of this document.
AMPEX CORPORATION Date
Date
Date: 8/15/96
Time: 4:35:14 PM
2
<PAGE>
AMPEX CORPORATION
OPTION AGREEMENT
(INCENTIVE STOCK OPTION)
1. General
AMPEX CORPORATION, a Delaware corporation (the "Company"), has granted
an option (the "Option"), pursuant to the Company's 1992 Stock Incentive Plan,
as amended (the "Plan"), to purchase shares of the Company's Class A Common
Stock, $0.01 par value per share ("Common Stock") as set forth on the
immediately preceding page (the "Facing Page"). These terms and conditions and
the Facing Page together constitute this Option Agreement (the "Agreement").
All undefined capitalized terms herein shall have the same meaning as set forth
in the Plan. This Option is subject to the terms and conditions of the
Agreement and the terms and conditions of the Plan. By signing the Facing Page,
the recipient of this Option (the "Optionee") agrees to the terms and
conditions of this Option Agreement, acknowledges receipt of a copy of the
Option Agreement and the Plan, and understands and agrees that this Option
Agreement is not meant to interpret, extend, or change the Plan in any way, nor
to represent the full terms of the Plan. If there is any discrepancy, conflict
or omission between this Agreement and the provisions of the Plan as
interpreted by the Company, the provisions of the Plan shall govern. 2.
Incentive Stock Option
This Option is intended to qualify as an incentive stock option
("Incentive Stock Option") within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
3. Exercise of Option and Provisions for Termination
(a) Exercisability of Option. This Option shall become exercisable and
Option shares may be purchased in accordance with the schedule set forth on the
Facing Page. Notwithstanding the foregoing, this Option shall not be
exercisable unless such exercise is in compliance with the Securities Act of
1933, as amended, all other applicable laws and regulations (including state
securities laws) and the requirements of any securities exchange on which the
shares of Common Stock are listed.
(b) Expiration Date. Except as otherwise provided in this Agreement,
each portion of this Option may not be exercised after the expiration date
(hereinafter the "Expiration Date") that is the set forth on the Facing Page.
Notwithstanding the foregoing, if an Optionee is a "10% Stockholder" as defined
in Section 4(b) of the Plan, the Expiration Date for all portions of the Option
shall be no later than the fifth anniversary of the date of grant.
(c) Exercise Procedure. Subject to the conditions set forth in this
Agreement and, if applicable, Section 9 of the Plan, this Option shall be
exercised by the Optionee's delivery of written notice of exercise to the
Secretary of the Company, specifying the number of shares to be purchased and
the Exercise Price Per Share to be paid therefor and accompanied by payment in
full in accordance with Section 4 below, and such exercise shall be effective
on the date described in Section 8(c) of the Plan. The Optionee may purchase
less than the total number of shares covered hereby, provided that no partial
exercise of this option may be for any fractional share or for less than 10
whole shares.
(d) Continuous Service Required. Except as otherwise provided in this
Section 3, this Option may not be exercised unless the Optionee, at the time he
or she exercises this option, is, and has been at all times since the date of
grant of this option, an Eligible Participant (as such term is defined in
Section 8(b) of the Plan). For all purposes of this Option, if this Option
shall be assumed or a new option substituted therefor in a transaction
described in Section 14 of the Plan, service with such assuming or substituting
corporation (hereinafter called the "Successor Corporation" ) or with a Parent
Corporation or a Subsidiary thereof (as defined in the Plan, respectively, but
with the Successor Corporation substituted for the Company in such definitions)
shall be considered for all purposes of this option to be service with the
Company, a Parent Corporation or a Subsidiary, as the case may be.
(e) Termination of Status as Eligible Participant. Subject to Section
3(g) below, if the Optionee ceases to be an Eligible Participant for any reason
other than death or disability or a discharge for "cause," as provided in
Section 3(h) below, the right to exercise this Option shall terminate three
months after such cessation (but in no event after the Expiration Date).
(f) Exercise Period Upon Death or Disability. Except as otherwise
provided in Sections 3(a), 3(b) or 3(g), if the Optionee dies or becomes
disabled (within the meaning under the Plan) prior to the Expiration Date,
while he or she is an Eligible Participant, or if the Optionee dies within
three months after the Optionee ceases to be an Eligible Participant (other
than as the result of a discharge for "cause" as specified in Section 3(h)
below), this Option shall be exercisable, within the period of one year
following the date of death or disability of the Optionee (but in no event
after the Expiration Date), by the Optionee (or the Optionee's legal
representative in event of legal incapacity) or by the person to whom this
Option is transferred by will or the laws of descent and distribution. Except
as otherwise indicated by the context, the term "Optionee," as used in this
Option, shall be deemed to include the estate of the Optionee, or any person
who acquires the right to exercise this option by reason of legal incapacity or
by bequest or inheritance or otherwise by reason of the death of the Optionee.
(g) Termination of Unvested Options. As described above, if this
Option or a portion thereof is vested on or before the date on which the
Optionee ceases to be an Eligible Participant (the "Termination Date"), but not
exercised during the applicable time period specified in Section 3(e) or 3(f)
above, the Option or portion thereof shall be deemed terminated at the end of
the applicable time period. However, if this Option or a portion thereof is not
vested, and will not become vested based on the vesting schedule referred to in
Section 3(a) above, on or before the Termination Date, the Option or portion
thereof shall be deemed terminated on the earlier of (i) the Termination Date
or (ii) the date of the Optionee's last day of active service with the Company,
a Parent Corporation or a Subsidiary, as the case may be (which, in the case of
a lay-off, shall be the effective date of the layoff).
(h) Discharge for Cause. If the Optionee, prior to the Expiration
Date, ceases his or her status as an Eligible Participant because he or she is
discharged for "cause" (as defined below), the right to exercise this Option
shall terminate immediately upon such cessation of service. "Cause " shall mean
willful misconduct in connection with the Optionee's employment or other
service, willful failure to perform his or her responsibilities in the best
interests of the Company, a Parent Corporation or a Subsidiary (as the case may
be), as determined by the entity, which determination shall be conclusive. 4.
Payment of Purchase Price
Payment of the purchase price for shares purchased upon exercise of this
Option shall be made by delivery to the Company of the purchase price, payable
in cash (by check) or any other method of payment that is permitted by the Plan
and specifically authorized by the Board of Directors at the time of the grant
of this Option.
5. Delivery of Shares
The Company shall, upon payment of the option price for the number of
shares purchased and paid for, make prompt delivery of such shares to the
Optionee, provided that if any law or regulation requires the Company to take
any action with respect to such shares before the issuance thereof, then the
date of delivery of such shares shall be extended for the period necessary to
complete such action. No shares shall be issued and delivered upon exercise of
any Option unless and until, in the opinion of counsel for the Company, any
applicable registration requirements of the Securities Act of 1933, as amended,
any applicable listing requirements of any national securities exchange on
which stock of the same class is then listed, and any other requirements of
law, including state securities laws, or of any regulatory bodies having
jurisdiction over such issuance and delivery, shall have been fully complied
with. 6. Transferability of Option
Except as provided in Section 3(f) of this Agreement or Section 9 of
the Plan, this Option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise), except by will or the laws of descent and distribution,
nor shall any such rights be subject to execution, attachment or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of this Option or of such rights contrary to the provisions hereof, or
upon the levy of any attachment or similar process upon this option or such
rights, this Option and such rights shall, at the election of the Company,
become null and void. 7. No Special Rights as an Eligible Participant
Nothing contained in the Plan or this Agreement shall be construed or
deemed by any person under any circumstances to bind the Company or any Parent
Corporation or Subsidiary to continue the status of the Optionee as an employee
or other Eligible Participant for the period within which this Option may be
exercised. However, during the period of the Optionee's service, the Optionee
shall render diligently and faithfully the services which are assigned from
time to time by the Board of Directors or by the executive officers of the
Company or any Parent Corporation or Subsidiary and shall at no time take any
action which directly or indirectly would be inconsistent with the best
interests of the foregoing entities. 8. Rights as a Stockholder
The Optionee shall have no rights as a stockholder with respect to any
shares that may be purchased by exercise of this Option unless and until a
certificate representing such shares is duly issued to the Optionee. 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.
9. 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 for which
this Option shall be exercisable, as provided in Section 13 of the Plan. Such
adjustment to this Option shall be made without change in the total price
applicable to the unexercised portion of this Option, and a corresponding
adjustment in the Option price per share shall be made. No such adjustment
shall be made that would, within the meaning of any applicable provisions of
the Code, constitute a modification, extension or renewal of this Option or a
grant of additional benefits to the Optionee. 10. Reorganization
In the event the Company is merged or consolidated with another
corporation other than an Affiliate and the Company is not the surviving
corporation, or in the event 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 in the event of a reorganization
or liquidation of the Company prior to the Expiration Date or termination of
this Option, the Optionee shall, with respect to this Option or any unexercised
portion hereof, be entitled to the rights and benefits, and be subject to the
limitations, set forth in Section 14 of the Plan.
11. Withholding Taxes
The Company's obligation to deliver shares upon the exercise of this
Option shall be subject to the Optionee's satisfaction of all applicable
federal, state and local income and employment tax withholding requirements.
12. Optionee Representations; Legend
(a) Representations. By signing the Facing Page, the Optionee
represents, warrants and covenants that he or she has had such opportunity as
he or she has deemed adequate to obtain from representatives of the Company
such information as is necessary to permit the Optionee to evaluate the merits
and risks of his or her investment in the Company. The Optionee understands
that there may be restrictions on his or her ability to resell any shares
acquired on exercise of an Option, including but not limited to insider trading
laws and the Company's insider trading policy, as well as other restrictions
that will apply if the Optionee is an "affiliate" of the Company. By making
payment upon exercise of this Option, the Optionee shall be deemed to have
reaffirmed, as of the date of such payment, the representations made in this
Section 12.
(b) Legend on Stock Certificate. The Optionee understands that,
pursuant to the Company's Restated Certificate of Incorporation, any shares of
Common Stock owned by a "Restricted Foreign Holder" (as defined in the Restated
Certificate of Incorporation) shall not be entitled to vote on any matter
submitted to a vote of stockholders. Accordingly, all stock certificates
representing shares of Common Stock issued to the Optionee upon exercise of
this Option shall have affixed thereto a legend substantially in the following
form, in addition to any other legends required by applicable state law:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED PURSUANT TO
THE RESTATED CERTIFICATE OF INCORPORATION OF THE CORPORATION TO THE
EFFECT THAT THE VOTING RIGHTS OF CERTAIN HOLDERS OF THE CORPORATION'S
SECURITIES MAY BE NULLIFIED IN THE EVENT OF ANY INQUIRY OR
DETERMINATION BY THE U.S. DEPARTMENT OF DEFENSE REGARDING FOREIGN
OWNERSHIP OF THE CORPORATION AND ITS POSSIBLE EFFECTS ON NATIONAL
SECURITY."
13. Limitation on Disposition of Incentive Stock Option Shares
It is understood and intended that this Option shall qualify as an
"incentive stock option" as defined in Section 422 of the Code. Accordingly,
the Optionee understands that in order to obtain the benefits of an incentive
stock option under Section 421 of the Code, no sale or other disposition may be
made of any shares acquired upon exercise of the Option within the one year
period beginning on the day after the day of the issuance of such shares to the
Optionee, nor within the two year period beginning on the day after the date of
grant of this Option. If the Optionee disposes of any such shares (whether by
sale, exchange, gift, transfer or otherwise) prior to the expiration of either
such period, he or she will notify the Company in writing within ten days after
such disposition.
Notwithstanding the foregoing, nothing herein shall be deemed to be or
interpreted as a representation, guarantee or other undertaking on the part of
the Company that this Option is or will be determined to be an incentive stock
option within the meaning of Section 422 of the Code or any other Code section.
14. Miscellaneous
(a) Except as provided herein or in the Plan, this Agreement may not
be amended or otherwise modified unless evidenced in writing and signed by the
Company and the Optionee.
(b) All notices under this Option shall, unless otherwise provided
herein, be mailed or delivered by hand to the parties at their respective
addresses set forth on the Facing Page or at such other address as may be
designated in writing by either of the parties to the other.
(c) This Option shall be governed by and construed in accordance with
the laws of the State of Delaware.
(d) This Agreement shall be binding upon and inure to the heirs,
successors and assigns of Optionee (subject, however, to the limitations set
forth herein with respect to assignment of the option or rights therein) and
the Company and shall be construed in a manner that is consistent with the
provisions of the Plan.
3
<PAGE>
EXHIBIT B
Notice of Grant of Stock Options
and Option Agreement AMPEX CORPORATION
ID: 13-3667696
500 Broadway
Redwood City, CA 94063
OPTION NUMBER:
Plan:
1992
ID:
Effective , you have been granted a Non-Qualified Stock Option to buy shares of
AMPEX CORPORATION (the Company) Class A stock at $ per share.
The total option price of the shares granted is $
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions
of the Company's 1992 Stock Incentive Plan and the Option Agreement, all of
which are attached and made a part of this document.
AMPEX CORPORATION Date
Date
Date: 8/15/96
Time: 4:27:32 PM
4
<PAGE>
AMPEX CORPORATION
OPTION AGREEMENT
(NONQUALIFIED STOCK OPTION)
1. General
AMPEX CORPORATION, a Delaware corporation (the "Company"), has granted
an option (the "Option"), pursuant to the Company's 1992 Stock Incentive Plan,
as amended (the "Plan"), to purchase shares of the Company's Class A Common
Stock, $0.01 par value per share ("Common Stock") as set forth on the
immediately preceding page (the "Facing Page"). These terms and conditions and
the Facing Page together constitute this Option Agreement (the "Agreement").
All undefined capitalized terms herein shall have the same meaning as set forth
in the Plan. This Option is subject to the terms and conditions of the
Agreement and the terms and conditions of the Plan. By signing the Facing Page,
the recipient of this Option (the "Optionee") agrees to the terms and
conditions of this Option Agreement, acknowledges receipt of a copy of the
Option Agreement and the Plan, and understands and agrees that this Option
Agreement is not meant to interpret, extend, or change the Plan in any way, nor
to represent the full terms of the Plan. If there is any discrepancy, conflict
or omission between this Agreement and the provisions of the Plan as
interpreted by the Company, the provisions of the Plan shall govern.
2. Exercise of Option and Provisions for Termination
(a) Exercisability of Option. This Option shall become exercisable and
Option shares may be purchased in accordance with the schedule set forth on the
Facing Page. Notwithstanding the foregoing, this Option shall not be
exercisable unless such exercise is in compliance with the Securities Act of
1933, as amended, all other applicable laws and regulations (including state
securities laws) and the requirements of any securities exchange on which the
shares of Common Stock are listed.
(b) Expiration Date. Except as otherwise provided in this Agreement,
each portion of this Option may not be exercised after the expiration date
(hereinafter the "Expiration Date") that is the set forth on the Facing Page.
(c) Exercise Procedure. Subject to the conditions set forth in this
Agreement and, if applicable, Section 9 of the Plan, this Option shall be
exercised by the Optionee's delivery of written notice of exercise to the
Secretary of the Company, specifying the number of shares to be purchased and
the Exercise Price Per Share to be paid therefor and accompanied by payment in
full in accordance with Section 3 below, and such exercise shall be effective
on the date described in Section 8(c) of the Plan. The Optionee may purchase
less than the total number of shares covered hereby, provided that no partial
exercise of this option may be for any fractional share or for less than 10
whole shares.
(d) Continuous Service Required. Except as otherwise provided in this
Section 2, this Option may not be exercised unless the Optionee, at the time he
or she exercises this option, is, and has been at all times since the date of
grant of this option, an Eligible Participant (as such term is defined in
Section 8(b) of the Plan). For all purposes of this Option, if this Option
shall be assumed or a new option substituted therefor in a transaction
described in Section 14 of the Plan, service with such assuming or substituting
corporation (hereinafter called the "Successor Corporation" ) or with a Parent
Corporation or a Subsidiary thereof (as defined in the Plan, respectively, but
with the Successor Corporation substituted for the Company in such definitions)
shall be considered for all purposes of this option to be service with the
Company, a Parent Corporation or a Subsidiary, as the case may be.
(e) Termination of Status as Eligible Participant. Subject to Section
2(g) below, if the Optionee ceases to be an Eligible Participant for any reason
other than death or disability or a discharge for "cause," as provided in
Section 2(h) below, the right to exercise this Option shall terminate three
months after such cessation (but in no event after the Expiration Date).
(f) Exercise Period Upon Death or Disability. Except as otherwise
provided in Sections 2(a), 2(b) or 2(g), if the Optionee dies or becomes
disabled (within the meaning under the Plan) prior to the Expiration Date,
while he or she is an Eligible Participant, or if the Optionee dies within
three months after the Optionee ceases to be an Eligible Participant (other
than as the result of a discharge for "cause" as specified in Section 2(h)
below), this Option shall be exercisable, within the period of one year
following the date of death or disability of the Optionee (but in no event
after the Expiration Date), by the Optionee (or the Optionee's legal
representative in event of legal incapacity) or by the person to whom this
Option is transferred by will or the laws of descent and distribution. Except
as otherwise indicated by the context, the term "Optionee," as used in this
Option, shall be deemed to include the estate of the Optionee, or any person
who acquires the right to exercise this option by reason of legal incapacity or
by bequest or inheritance or otherwise by reason of the death of the Optionee.
(g) Termination of Unvested Options. As described above, if this
Option or a portion thereof is vested on or before the date on which the
Optionee ceases to be an Eligible Participant (the "Termination Date"), but not
exercised during the applicable time period specified in Section 2(e) or 2(f)
above, the Option or portion thereof shall be deemed terminated at the end of
the applicable time period. However, if this Option or a portion thereof is not
vested, and will not become vested based on the vesting schedule referred to in
Section 2(a) above, on or before the Termination Date, the Option or portion
thereof shall be deemed terminated on the earlier of (i) the Termination Date
or (ii) the date of the Optionee's last day of active service with the Company,
a Parent Corporation or a Subsidiary, as the case may be (which, in the case of
a lay-off, shall be the effective date of the layoff).
(h) Discharge for Cause. If the Optionee, prior to the Expiration
Date, ceases his or her status as an Eligible Participant because he or she is
discharged for "cause" (as defined below), the right to exercise this Option
shall terminate immediately upon such cessation of service. "Cause " shall mean
willful misconduct in connection with the Optionee's employment or other
service, willful failure to perform his or her responsibilities in the best
interests of the Company, a Parent Corporation or a Subsidiary (as the case may
be), as determined by the entity, which determination shall be conclusive.
3. Payment of Purchase Price
Payment of the purchase price for shares purchased upon exercise of
this Option shall be made by delivery to the Company of the purchase price,
payable in cash (by check) or any other method of payment that is permitted by
the Plan and specifically authorized by the Board of Directors on or before the
time of exercise.
4. Delivery of Shares
The Company shall, upon payment of the option price for the number of
shares purchased and paid for, make prompt delivery of such shares to the
Optionee, provided that (a) in accordance with Section 6(e) of the Plan, the
Company may make a payment in cash in lieu of delivery of shares, and (b) if
any law or regulation requires the Company to take any action with respect to
such shares before the issuance thereof, then the date of delivery of such
shares shall be extended for the period necessary to complete such action. No
shares shall be issued and delivered upon exercise of any Option unless and
until, in the opinion of counsel for the Company, any applicable registration
requirements of the Securities Act of 1933, as amended, any applicable listing
requirements of any national securities exchange on which stock of the same
class is then listed, and any other requirements of law, including state
securities laws, or of any regulatory bodies having jurisdiction over such
issuance and delivery, shall have been fully complied with.
5. Transferability of Option
Except as provided in Section 2(f) of this Agreement or Section 9 of
the Plan, this Option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise), except by will or the laws of descent and distribution,
nor shall any such rights be subject to execution, attachment or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of this Option or of such rights contrary to the provisions hereof, or
upon the levy of any attachment or similar process upon this option or such
rights, this Option and such rights shall, at the election of the Company,
become null and void.
6. No Special Rights as an Eligible Participant
Nothing contained in the Plan or this Agreement shall be construed or
deemed by any person under any circumstances to bind the Company or any Parent
Corporation or Subsidiary to continue the status of the Optionee as an employee
or other Eligible Participant for the period within which this Option may be
exercised. However, during the period of the Optionee's service, the Optionee
shall render diligently and faithfully the services which are assigned from
time to time by the Board of Directors or by the executive officers of the
Company or any Parent Corporation or Subsidiary and shall at no time take any
action which directly or indirectly would be inconsistent with the best
interests of the foregoing entities.
7. Rights as a Stockholder
The Optionee shall have no rights as a stockholder with respect to any
shares that may be purchased by exercise of this Option unless and until a
certificate representing such shares is duly issued to the Optionee. 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.
8. 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 for which
this Option shall be exercisable, as provided in Section 13 of the Plan. Such
adjustment to this Option shall be made without change in the total price
applicable to the unexercised portion of this Option, and a corresponding
adjustment in the Option price per share shall be made. No such adjustment
shall be made that would constitute a grant of additional benefits to the
Optionee.
9. Reorganization
In the event the Company is merged or consolidated with another
corporation other than an Affiliate and the Company is not the surviving
corporation, or in the event 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 in the event of a reorganization
or liquidation of the Company prior to the Expiration Date or termination of
this Option, the Optionee shall, with respect to this Option or any unexercised
portion hereof, be entitled to the rights and benefits, and be subject to the
limitations, set forth in Section 14 of the Plan.
12. Withholding Taxes
The Company's obligation to deliver shares upon the exercise of this
Option shall be subject to the Optionee's satisfaction of all applicable
federal, state and local income and employment tax withholding requirements.
11. Optionee Representations; Legend
(a) Representations. By signing the Facing Page, the Optionee
represents, warrants and covenants that he or she has had such opportunity as
he or she has deemed adequate to obtain from representatives of the Company
such information as is necessary to permit the Optionee to evaluate the merits
and risks of his or her investment in the Company. The Optionee understands
that there may be restrictions on his or her ability to resell any shares
acquired on exercise of an Option, including but not limited to insider trading
laws and the Company's insider trading policy, as well as other restrictions
that will apply if the Optionee is an "affiliate" of the Company. By making
payment upon exercise of this Option, the Optionee shall be deemed to have
reaffirmed, as of the date of such payment, the representations made in this
Section 11.
(b) Legend on Stock Certificate. The Optionee understands that,
pursuant to the Company's Restated Certificate of Incorporation, any shares of
Common Stock owned by a "Restricted Foreign Holder" (as defined in the Restated
Certificate of Incorporation) shall not be entitled to vote on any matter
submitted to a vote of stockholders. Accordingly, all stock certificates
representing shares of Common Stock issued to the Optionee upon exercise of
this Option shall have affixed thereto a legend substantially in the following
form, in addition to any other legends required by applicable state law:
"THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED PURSUANT TO THE RESTATED
CERTIFICATE OF INCORPORATION OF THE CORPORATION TO THE EFFECT THAT THE VOTING
RIGHTS OF CERTAIN HOLDERS OF THE CORPORATION'S SECURITIES MAY BE NULLIFIED IN
THE EVENT OF ANY INQUIRY OR DETERMINATION BY THE U.S. DEPARTMENT OF DEFENSE
REGARDING FOREIGN OWNERSHIP OF THE CORPORATION AND ITS POSSIBLE EFFECTS ON
NATIONAL SECURITY."
12. Miscellaneous
(a) Except as provided herein or in the Plan, this Agreement may not
be amended or otherwise modified unless evidenced in writing and signed by the
Company and the Optionee.
(b) All notices under this Option shall, unless otherwise provided
herein, be mailed or delivered by hand to the parties at their respective
addresses set forth on the Facing Page or at such other address as may be
designated in writing by either of the parties to the other.
(c) This Option shall be governed by and construed in accordance with
the laws of the State of Delaware.
(d) This Agreement shall be binding upon and inure to the heirs,
successors and assigns of Optionee (subject, however, to the limitations set
forth herein with respect to assignment of the option or rights therein) and
the Company and shall be construed in a manner that is consistent with the
provisions of the Plan.
5
<PAGE>
EXHIBIT C
AMPEX CORPORATION
TANDEM STOCK APPRECIATION RIGHTS AGREEMENT
GRANT AND ACKNOWLEDGMENT
AMPEX CORPORATION, a Delaware corporation (the "Company"), hereby
grants tandem stock appreciation rights ("Rights"), pursuant to the Company's
1992 Stock Incentive Plan (the "Plan"), with respect to shares of the Company's
Class A Common Stock, $0.01 par value per share ("Common Stock") as set forth
below. These Rights are subject to the terms and conditions attached hereto and
the terms and conditions of the Plan.
NAME OF HOLDER:
NUMBER OF SHARES:
DATE OF GRANT:
EXERCISE PRICE PER SHARE
OF TANDEM OPTION:
VESTING SCHEDULE:
Percentage of
Number of Years of Rights Available for
Service That Have Expired Exercise (Cumulative)
1 year 0% 2 years 20% 3 years 60% 4 or more years 100% The Company has caused
this Rights Agreement to be duly executed this _____ day of _______, 19__.
AMPEX CORPORATION
401 Broadway
Redwood City,
California 94063-3199
By:
Richard J. Jacquet, Vice President
HOLDER'S ACCEPTANCE
I accept this Rights Agreement and agree to the terms and conditions
attached hereto. I acknowledge receipt of a copy of the Company's 1992 Stock
Incentive Plan, and I understand and agree that this Rights Agreement is not
meant to interpret, extend, or change the Plan in any way, nor to represent the
full terms of the Plan. If there is any discrepancy, conflict or omission
between this Agreement and the provisions of the Plan as interpreted by the
Company, the provisions of the Plan shall govern.
Signature:
Address:
Date:
6
<PAGE>
AMPEX CORPORATION
TANDEM STOCK APPRECIATION RIGHTS AGREEMENT
TERMS AND CONDITIONS
1. General.
The following terms and conditions apply to the Rights grant described
in the Grant and Acknowledgment to which these terms and conditions are
attached. These terms and conditions and the Grant and Acknowledgment together
constitute this Tandem Stock Appreciation Rights Agreement (the " Agreement").
All undefined capitalized terms herein shall have the same meaning as set forth
in the Grant and Acknowledgment and the Plan.
Each Right entitles the Holder to a payment in cash (unless the
Company elects otherwise pursuant to Section 3 hereof) equal to the excess of
the Fair Value of one share of Class A Common Stock, $0.01 par value, of the
Company ("Common Stock") on the effective date of exercise of each such Right,
over the exercise price of the option to purchase one share of Common Stock
reflected in the tandem option agreement (the "Option Agreement"), that was
entered into between the Holder and the Company under the Plan, subject to the
terms and conditions of this Agreement and the Plan.
2. Exercise of Rights and Provisions for Termination
(a) Tandem Right. Each Right is exercisable only upon cancellation and
waiver of the Holder's right to acquire one share of Common Stock under the
Option Agreement.
(b) Exercisability of Rights. These Rights shall become exercisable
based on the number of full years of service that have expired since the date
of grant (set forth in the Grant and Acknowledgment), in accordance with the
schedule set forth in the Grant and Acknowledgment. Notwithstanding the
foregoing, these Rights shall not be exercisable, and no shares of Common Stock
shall be issued on exercise, unless such exercise is in compliance with the
Securities Act of 1933, as amended, all other applicable laws and regulations
(including state securities laws) and the requirements of any securities
exchange on which the shares of Common Stock are listed.
(c) Expiration Date. Except as otherwise provided in this Agreement,
these Rights may not be exercised after the date (hereinafter the "Expiration
Date") that is the tenth anniversary of the date of grant.
(d) Exercise Procedure. Subject to the conditions set forth in this
Agreement and, if applicable, Section 9 of the Plan, these Rights shall be
exercised by the Holder's delivery of written notice of exercise to the
Secretary of the Company, specifying the number of Rights to be exercised and
confirming the cancellation and waiver of the Holder's right under the Option
Agreement to exercise an option to purchase one share of Common Stock for each
Right exercised under the notice, and such exercise shall be effective on the
date described in Section 7(c) of the Plan. The Company shall have sixty (60)
days after the date of exercise to deliver payment for the exercise of such
Rights in the manner described in Section 3 hereof.
(e) Continuous Employment Required. Except as otherwise provided in
this Section 2, these Rights may not be exercised unless the Holder, at the
time he or she exercises these Rights, is, and has been at all times since the
date of grant of these Rights, an employee or director of one or more of the
Company, a Parent Corporation or a Subsidiary (as such terms are defined in the
Plan). For all purposes of these Rights, if these Rights shall be assumed or a
new right substituted therefor in a transaction described in Section 13 of the
Plan, employment by or service with such assuming or substituting corporation
(hereinafter called the "Successor Corporation") or by a Parent Corporation or
a Subsidiary thereof (as defined in the Plan, respectively, but with the
Successor Corporation substituted for the Company in such definitions) shall be
considered for all purposes of these Rights to be employment by the Company, a
Parent Corporation or a Subsidiary, as the case may be.
(f) Termination of Employment. Subject to Section 2(h) below, if the
Holder ceases to be an employee and/or director of the Company, a Parent
Corporation or Subsidiary for any reason other than death or disability or a
discharge for "cause," as provided in Section 2(i) below, the right to exercise
these Rights shall terminate three months after such cessation (but in no event
after the Expiration Date).
(g) Exercise Period Upon Death or Disability. Except as otherwise
provided in Sections 2(a), 2(b) and 2(h), if the Holder dies or becomes
disabled (within the meaning under the Plan) prior to the Expiration Date,
while he or she is an employee or director of the Company, a Parent Corporation
or a Subsidiary, or if the Holder dies within three months after the Holder
ceases to be an employee or director of any of the foregoing entities (other
than as the result of a discharge for "cause" as specified in Section 2(i)
below), these Rights shall be exercisable, within the period of one year
following the date of death or disability of the Holder (but in no event after
the Expiration Date), by the Holder (or the Holder's legal representative in
event of legal incapacity) or by the person to whom these Rights are
transferred by will or the laws of descent and distribution. Except as
otherwise indicated by the context, the term "Holder," as used in these Rights,
shall be deemed to include the estate of the Holder, or any person who acquires
the right to exercise these Rights by reason of legal incapacity or by bequest
or inheritance or otherwise by reason of the death of the Holder.
(h) Termination of Unvested Options. As described above, if this Right
or a portion thereof is vested on or before the date on which the Holder ceases
to be an employee or director of the Company (the "Termination Date"), but not
exercised during the applicable time period specified in Section 2(f) or 2(g)
above, the Right or portion thereof shall be deemed terminated at the end of
the applicable time period. However, if this Right or a portion thereof is not
vested, and will not become vested based on the vesting schedule referred to in
Section 2(b) above, on or before the Termination Date, the Right or portion
thereof shall be deemed terminated on the earlier of (i) the Termination Date
or (ii) the date of the Holder's last day of active work at the Company (which,
in the case of a lay-off, shall be the effective date of the layoff).
(i) Discharge for Cause. If the Holder, prior to the Expiration Date,
ceases his or her employment or directorship with the Company, a Parent
Corporation or a Subsidiary because he or she is discharged for "cause" (as
defined below), the right to exercise these Rights shall terminate immediately
upon such cessation of employment. "Cause" shall mean willful misconduct in
connection with the Holder's services to the Company, Parent Corporation or a
Subsidiary or willful failure to perform his or her responsibilities in the
best interests of such corporation, as determined by the Company, which
determination shall be conclusive.
3. Payment by Company Upon Exercise of Rights
(a) Payment in Cash. Except as otherwise permitted under Section 3(b),
within sixty days after the exercise of the Rights by the Holder, the Company
shall deliver to the Holder a lump sum cash payment to which the Holder is
entitled pursuant to Sections 1 and 2 hereof.
(b) Elective Payment in Stock. Notwithstanding Section 3(a), to the extent
permitted under Section 6 of the Plan, the Company may elect to pay up to 100%
of the amount payable upon exercise of the Rights in shares of Common Stock,
rather than cash, based on the Fair Value of such shares as of the date of
exercise. Such shares shall be deliverable by the Company within sixty days
after the date of exercise. Notwithstanding anything in the foregoing to the
contrary, the Company, in its discretion, may pay any cash amount payable in
non-increasing annual installments over a period not exceeding _____ years from
the Exercise Date, with interest at the "applicable federal rate," as set forth
in Section 1274 of the Internal Revenue Code of 1986, as amended (the "Code").
Interest shall begin to accrue on the 61st day after the date of exercise.
4. Delivery of Shares
The Company shall make delivery of any shares of Common Stock
deliverable with respect to Rights that the Holder has exercised; provided that
if any law or regulation requires the Company to take any action with respect
to such shares before the issuance thereof, then the date of delivery of such
shares shall be extended for the period necessary to complete such action. No
shares shall be issued and delivered upon exercise of any Right unless and
until, in the opinion of counsel for the Company, any applicable registration
requirements of the Securities Act of 1933, any applicable listing requirements
of any national securities exchange on which stock of the same class is then
listed, and any other requirements of law or of any regulatory bodies having
jurisdiction over such issuance and delivery, shall have been fully complied
with.
5. Non-transferability of Rights
Except as provided in Section 2(g), these Rights are personal and no
rights granted under this Rights Agreement may be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise),
except by will or the laws of descent and distribution, nor shall any such
rights be subject to execution, attachment or similar process. Upon any attempt
impermissibly to transfer, assign, pledge, hypothecate or otherwise dispose of
these Rights or of any rights granted hereunder contrary to the provisions
hereof, or upon the levy of any attachment or similar process upon these Rights
or such rights, these Rights shall, at the election of the Company, become null
and void.
6. No Special Employment Rights
Nothing contained in the Plan or this Rights Agreement shall be
construed or deemed by any person under any circumstances to bind the Company
or any Parent Corporation or Subsidiary to continue the employment or services
of the Holder for the period under which these Rights may be exercised.
However, during the period of the Holder's employment or performance of
services, the Holder shall render diligently and faithfully the services which
are assigned from time to time by the Board of Directors or by the executive
officers of the Company or any Parent Corporation or Subsidiary and shall at no
time take any action which directly or indirectly would be inconsistent with
the best interests of the foregoing entities.
7. Rights as a Stockholder
The Holder shall have no rights as a stockholder of the Company with
respect to any shares which may be issued upon the exercise of these Rights
unless and until certificates representing such shares are duly issued to the
Holder. Except as 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.
8. Recapitalization
In the event that the outstanding shares of Common Stock 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 Rights to which this Rights Agreement
pertains. No such adjustment shall be made which would constitute a grant of
additional benefits to the Holder.
9. Reorganization
In the event the Company is merged or consolidated with another
corporation other than an Affiliate and the Company is not the surviving
corporation, or in the event all or substantially all of the assets of the
Company or more than 50% of the outstanding voting stock of the Company is
acquired by any other corporation other than an Affiliate, or in the event
there is a reorganization or liquidation of the Company prior to the Expiration
Date or termination of these Rights, the Holder shall, with respect to these
Rights or any unexercised portion thereof, be entitled to the rights and
benefits, and be subject to the limitations, set forth in Section 13 of the
Plan.
10. Withholding Taxes
The Company's obligation to deliver cash or shares upon the exercise
of these Rights shall be subject to the Holder's satisfaction of all applicable
federal, state and local income and employment tax withholding requirements.
11. Holder Representations; Legend
(a) Representations. The Holder represents, warrants and covenants
that he or she has had such opportunity as he or she has deemed adequate to
obtain from representatives of the Company such information as is necessary to
permit the Holder to evaluate the merits and risks of any investment in the
Company that might result from the grant or exercise of these Rights. The
Holder understands that there may be restrictions on his or her ability to
resell any shares acquired on exercise of these Rights, including but not
limited to insider trading laws and the Company's insider trading policy, as
well as other restrictions that will apply if the Holder is an "affiliate" of
the Company. By exercising these Rights or any part thereof, the Holder shall
be deemed to have reaffirmed, as of the date of such exercise, the
representations made in this Section 11.
(b) Legend on Stock Certificate. The Holder understands that, pursuant
to the Company's Restated Certificate of Incorporation, any shares of Common
Stock owned by a "Restricted Foreign Holder" (as defined in the Restated
Certificate of Incorporation) shall not be entitled to vote on any matter
submitted to a vote of stockholders. Accordingly, all stock certificates
representing shares of Common Stock issued to the Holder upon exercise of the
Rights shall have affixed thereto a legend substantially in the following form,
in addition to any other legends required by applicable state law:
"THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED PURSUANT TO THE RESTATED
CERTIFICATE OF INCORPORATION OF THE CORPORATION TO THE EFFECT THAT THE VOTING
RIGHTS OF CERTAIN HOLDERS OF THE CORPORATION'S SECURITIES MAY BE NULLIFIED IN
THE EVENT OF ANY INQUIRY OR DETERMINATION BY THE U.S. DEPARTMENT OF DEFENSE
REGARDING FOREIGN OWNERSHIP OF THE CORPORATION AND ITS POSSIBLE EFFECTS ON
NATIONAL SECURITY."
12. Miscellaneous
(a) Except as provided herein or in the Plan, this Agreement shall not
be amended or otherwise modified unless evidenced in writing and signed by the
Company and the Holder.
(b) All notices under this Agreement shall, unless otherwise provided
herein, be mailed or delivered by hand to the parties at their respective
addresses set forth in the Grant and Acknowledgment or at such other address as
may be designated in writing by either of the parties to the other.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
(d) This Agreement shall be binding upon and inure to the heirs,
successors and assigns of the Holder (subject, however, to the limitations set
forth herein with respect to assignment of the Rights or rights therein) and
the Company and shall be construed in a manner that is consistent with the
provisions of the Plan.
7
<PAGE>
EXHIBIT D
AMPEX CORPORATION
NON-TANDEM STOCK APPRECIATION RIGHTS AGREEMENT
GRANT AND ACKNOWLEDGMENT
AMPEX CORPORATION, a Delaware corporation (the "Company"), hereby
grants non-tandem stock appreciation rights ("Rights"), pursuant to the
Company's 1992 Stock Incentive Plan, as amended (the "Plan"), with respect to
shares of the Company's Class A Common Stock, $0.01 par value per share ("
Common Stock") as set forth below. These Rights are subject to the terms and
conditions attached hereto and the terms and conditions of the Plan.
NAME OF HOLDER:
NUMBER OF SHARES:
DATE OF GRANT:
FAIR VALUE PER SHARE
ON DATE OF GRANT:
VESTING SCHEDULE:
Percentage of Date
Rights Available for Fully Expiration
Exercise (Cumulative) Vested Date
The Company has caused this Rights Agreement to be duly executed this _____ day
of _______, 19__.
AMPEX CORPORATION
500 Broadway
Redwood City,
California 94063-3199
By:
Richard J. Jacquet, Vice President
HOLDER'S ACCEPTANCE
I accept this Rights Agreement and agree to the terms and conditions
attached hereto. I acknowledge receipt of a copy of the Plan, and I understand
and agree that this Rights Agreement is not meant to interpret, extend, or
change the Plan in any way, nor to represent the full terms of the Plan. If
there is any discrepancy, conflict or omission between this Agreement and the
provisions of the Plan as interpreted by the Company, the provisions of the
Plan shall govern.
Signature:
Address:
Date:
8
<PAGE>
AMPEX CORPORATION
NON-TANDEM STOCK APPRECIATION RIGHTS AGREEMENT
TERMS AND CONDITIONS
1. General.
The following terms and conditions apply to the Rights grant described
in the Grant and Acknowledgment to which these terms and conditions are
attached. These terms and conditions and the Grant and Acknowledgment together
constitute this Non-Tandem Stock Appreciation Rights Agreement (the
"Agreement"). All undefined capitalized terms herein shall have the same
meaning as set forth in the Grant and Acknowledgment and the Plan.
Each Right entitles the Holder to a payment in cash (unless the
Company elects otherwise pursuant to Section 3 hereof) equal to the excess of
the Fair Value of one share of Class A Common Stock, $0.01 par value, of the
Company ("Common Stock") on the effective date of exercise of each such Right,
over the Fair Value of such share on the date of grant (as shown on the Grant
and Acknowledgment), subject to the terms and conditions of this Agreement and
the Plan.
2. Exercise of Rights and Provisions for Termination
(a) Exercisability of Rights. These Rights shall become exercisable in
accordance with the schedule set forth in the Grant and Acknowledgment.
Notwithstanding the foregoing, these Rights shall not be exercisable, and no
shares of Common Stock shall be issued on exercise, unless such exercise is in
compliance with the Securities Act of 1933, as amended, all other applicable
laws and regulations (including state securities laws) and the requirements of
any securities exchange on which the shares of Common Stock are listed.
(b) Expiration Date. Except as otherwise provided in this Agreement,
these Rights may not be exercised after the expiration date (hereinafter the
"Expiration Date") that is set forth in the Grant and Acknowledgment.
(c) Exercise Procedure. Subject to the conditions set forth in this
Agreement and, if applicable, Section 9 of the Plan, these Rights shall be
exercised by the Holder's delivery of written notice of exercise to the
Secretary of the Company, specifying the number of Rights to be exercised, and
such exercise shall be effective on the date described in Section 8(c) of the
Plan. The Company shall have sixty (60) days after the date of exercise to
deliver payment for the exercise of such Rights in the manner described in
Section 3 hereof.
(d) Continuous Employment Required. Except as otherwise provided in
this Section 2, these Rights may not be exercised unless the Holder, at the
time he or she exercises these Rights, is, and has been at all times since the
date of grant of these Rights, an Eligible Participant (as such term is defined
in Section 8(b) of the Plan). For all purposes of these Rights, if these Rights
shall be assumed or a new right substituted therefor in a transaction described
in Section 14 of the Plan, employment by or service with such assuming or
substituting corporation (hereinafter called the "Successor Corporation") or by
a Parent Corporation or a Subsidiary thereof (as defined in the Plan,
respectively, but with the Successor Corporation substituted for the Company in
such definitions) shall be considered for all purposes of these Rights to be
employment by the Company, a Parent Corporation or a Subsidiary, as the case
may be.
(e) Termination of Employment. Subject to Section 2(g) below, if the
Holder ceases to be an Eligible Participant for any reason other than death or
disability or a discharge for "cause," as provided in Section 2(h) below, the
right to exercise these Rights shall terminate three months after such
cessation (but in no event after the Expiration Date).
(f) Exercise Period Upon Death or Disability. Except as otherwise
provided in Sections 2(a), 2(b) and 2(g), if the Holder dies or becomes
disabled (within the meaning under the Plan) prior to the Expiration Date,
while he or she is an Eligible Participant, or if the Holder dies within three
months after the Holder ceases to be an Eligible Participant (other than as the
result of a discharge for "cause" as specified in Section 2(h) below), these
Rights shall be exercisable, within the period of one year following the date
of death or disability of the Holder (but in no event after the Expiration
Date), by the Holder (or the Holder's legal representative in event of legal
incapacity) or by the person to whom these Rights are transferred by will or
the laws of descent and distribution. Except as otherwise indicated by the
context, the term "Holder," as used in these Rights, shall be deemed to include
the estate of the Holder, or any person who acquires the right to exercise
these Rights by reason of legal incapacity or by bequest or inheritance or
otherwise by reason of the death of the Holder.
(g) Termination of Unvested Options. As described above, if this Right
or a portion thereof is vested on or before the date on which the Holder ceases
to be an Eligible Participant (the "Termination Date"), but not exercised
during the applicable time period specified in Section 2(e) or 2(f) above, the
Right or portion thereof shall be deemed terminated at the end of the
applicable time period. However, if this Right or a portion thereof is not
vested, and will not become vested based on the vesting schedule referred to in
Section 2(a) above, on or before the Termination Date, the Right or portion
thereof shall be deemed terminated on the earlier of (i) the Termination Date
or (ii) the date of the Holder's last day of active service with the Company, a
Parent Corporation or a Subsidiary, as the case may be (which, in the case of a
lay-off, shall be the effective date of the layoff).
(h) Discharge for Cause. If the Holder, prior to the Expiration Date,
ceases his or her status as an Eligible Participant because he or she is
discharged for "cause" (as defined below), the right to exercise these Rights
shall terminate immediately upon such cessation of service. "Cause" shall mean
willful misconduct in connection with the Holder's services to the Company,
Parent Corporation or a Subsidiary or willful failure to perform his or her
responsibilities in the best interests of such corporation, as determined by
the entity, which determination shall be conclusive.
3. Payment by Company Upon Exercise of Rights
(a) Payment in Cash. Except as otherwise permitted under Section 3(b),
within sixty days of exercise of the Rights by the Holder, the Company shall
deliver to the Holder a lump sum cash payment to which the Holder is entitled
pursuant to Sections 1 and 2 hereof.
(b) Elective Payment in Stock. Notwithstanding Section 3(a), to the
extent permitted under Section 7(c) of the Plan, the Company may elect to pay
up to 100% of the amount payable upon exercise of the Rights in shares of
Common Stock (rather than cash), based on the Fair Value of such shares as of
the date of exercise. Such shares shall be deliverable by the Company within
sixty days after the date of exercise. Notwithstanding anything in the
foregoing to the contrary, the Company, in its discretion, may pay any cash
amount payable in non-increasing annual installments over a period not
exceeding ____ years from the Exercise Date, with interest at the "applicable
federal rate," as set forth in Section 1274 of the Internal Revenue Code of
1986, as amended (the "Code"). Interest shall begin to accrue on the 61st day
after the date of exercise.
4. Delivery of Shares
The Company shall make delivery of any shares of Common Stock
deliverable with respect to Rights that the Holder has exercised; provided that
if any law or regulation requires the Company to take any action with respect
to such shares before the issuance thereof, then the date of delivery of such
shares shall be extended for the period necessary to complete such action. No
shares shall be issued and delivered upon exercise of any Right unless and
until, in the opinion of counsel for the Company, any applicable registration
requirements of the Securities Act of 1933, as amended, any applicable listing
requirements of any national securities exchange on which stock of the same
class is then listed, and any other requirements of law or of any regulatory
bodies having jurisdiction over such issuance and delivery, shall have been
fully complied with.
5. Non-transferability of Rights
Except as provided in Section 2(f), these Rights are personal and no
rights granted under this Rights Agreement may be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise),
except by will or the laws of descent and distribution, nor shall any such
rights be subject to execution, attachment or similar process. Upon any attempt
impermissibly to transfer, assign, pledge, hypothecate or otherwise dispose of
these Rights or of any rights granted hereunder contrary to the provisions
hereof, or upon the levy of any attachment or similar process upon these Rights
or such rights, these Rights shall, at the election of the Company, become null
and void.
6. No Special Employment Rights
Nothing contained in the Plan or this Rights Agreement shall be
construed or deemed by any person under any circumstances to bind the Company
or any Parent Corporation or Subsidiary to continue the employment or services
of the Holder for the period under which these Rights may be exercised.
However, during the period of the Holder's employment or performance of
services, the Holder shall render diligently and faithfully the services which
are assigned from time to time by the Board of Directors or by the executive
officers of the Company or any Parent Corporation or Subsidiary and shall at no
time take any action which directly or indirectly would be inconsistent with
the best interests of the foregoing entities. 7. Rights as a Stockholder
The Holder shall have no rights as a stockholder of the Company with
respect to any shares which may be issued upon the exercise of these Rights
unless and until certificates representing such shares are duly issued to the
Holder. Except as 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.
8. Recapitalization
In the event that the outstanding shares of Common Stock 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 Rights to which this Rights Agreement
pertains. No such adjustment shall be made which would constitute a grant of
additional benefits to the Holder.
9. Reorganization
In the event the Company is merged or consolidated with another
corporation other than an Affiliate and the Company is not the surviving
corporation, or in the event all or substantially all of the assets of the
Company or more than 50% of the outstanding voting stock of the Company is
acquired by any other corporation other than an Affiliate, or in the event
there is a reorganization or liquidation of the Company prior to the Expiration
Date or termination of these Rights, the Holder shall, with respect to the
Rights or any unexercised portion thereof, be entitled to the rights and
benefits, and be subject to the limitations, set forth in Section 13 of the
Plan.
10. Withholding Taxes
The Company's obligation to deliver cash or shares upon the exercise
of these Rights shall be subject to the Holder's satisfaction of all applicable
federal, state and local income and employment tax withholding requirements.
11. Holder Representations; Legend
(a) Representations. The Holder represents, warrants and covenants
that he or she has had such opportunity as he or she has deemed adequate to
obtain from representatives of the Company such information as is necessary to
permit the Holder to evaluate the merits and risks of any investment in the
Company that might result from the grant or exercise of these Rights. The
Holder understands that there may be restrictions on his or her ability to
resell any shares acquired on exercise of these Rights, including but not
limited to insider trading laws and the Company's insider trading policy, as
well as other restrictions that will apply if the Holder is an "affiliate" of
the Company. By exercising these Rights or any part thereof, the Holder shall
be deemed to have reaffirmed, as of the date of such exercise, the
representations made in this Section 11.
(b) Legend on Stock Certificate. The Holder understands that, pursuant
to the Company's Restated Certificate of Incorporation, any shares of Common
Stock owned by a "Restricted Foreign Holder" (as defined in the Restated
Certificate of Incorporation) shall not be entitled to vote on any matter
submitted to a vote of stockholders. Accordingly, all stock certificates
representing shares of Common Stock issued to the Holder upon exercise of the
Rights shall have affixed thereto a legend substantially in the following form,
in addition to any other legends required by applicable state law:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED PURSUANT TO
THE RESTATED CERTIFICATE OF INCORPORATION OF THE CORPORATION TO THE
EFFECT THAT THE VOTING RIGHTS OF CERTAIN HOLDERS OF THE CORPORATION'S
SECURITIES MAY BE NULLIFIED IN THE EVENT OF ANY INQUIRY OR
DETERMINATION BY THE U.S. DEPARTMENT OF DEFENSE REGARDING FOREIGN
OWNERSHIP OF THE CORPORATION AND ITS POSSIBLE EFFECTS ON NATIONAL
SECURITY."
12. Miscellaneous
(a) Except as provided herein or in the Plan, this Agreement shall not
be amended or otherwise modified unless evidenced in writing and signed by the
Company and the Holder.
(b) All notices under this Agreement shall, unless otherwise provided
herein, be mailed or delivered by hand to the parties at their respective
addresses set forth the Grant and Acknowledgment or at such other address as
may be designated in writing by either of the parties to the other.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
(d) This Agreement shall be binding upon and inure to the heirs,
successors and assigns of the Holder (subject, however, to the limitations set
forth herein with respect to assignment of the Rights or rights therein) and
the Company and shall be construed in a manner that is consistent with the
provisions of the Plan.
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