As filed with the Securities and Exchange Commission on March __, 1998
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------
Ampex Corporation
(Exact name of Registrant as specified in its charter)
-------------------------------
Delaware 13-3667696
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) I.D. Number)
500 Broadway
Redwood City, CA 94063-3199
(650) 367-2011
(Address, including zip code, and
telephone number, including area code,
of Registrant's principal executive
offices)
JOEL D. TALCOTT, Esq.
500 Broadway
Redwood City, CA 94063
(650) 367-3330
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
DAVID D. GRIFFIN, Esq.
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
-------------------------------
Approximate date of commencement of proposed sale to public: From time to
time following the effectiveness of this Registration Statement. If any of the
securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|X|
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Offering Price Aggregate Amount of
Registered Amount to be Registered Per Security(1) Offering Price(1) Registration Fee
- ---------------------------- -------------------------- --------------------------- ----------------------- --------------------
Class A Common Stock 1,020,000 Shares(2) $ 2.875 $ 2,932,500 $865
- ---------------------------- -------------------------- --------------------------- ------------------------ --------------------
Warrants to purchase 1,020,000 warrants $ -- $ -- $0(3)
Class A Common Stock
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(g), based upon the average of the high and low prices of the Class A
Common Stock on March 17, 1998, as reported by the American Stock Exchange.
(2) This Registration Statement also covers such number of additional shares of
Class A Common Stock of the Registrant as may be issued pursuant to
anti-dilution provisions of the Warrant Agreement.
(3) Pursuant to Rule 457(g)(3) no separate fee is required for registration of
the Warrants covering the shares of Class A Common Stock registered hereby.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
AMEX CORPORATION
CROSS-REFERENCE SHEET TO FORM S-3
<TABLE>
<CAPTION>
CAPTION OR LOCATION
ITEM NUMBER AND HEADING IN PROSPECTUS
- ----------------------- -------------------
<S> <C>
1 Forepart of Registration Statement and
Outside Front Cover Page of Prospectus.................Facing Page; Outside Front Cover Page
2. Inside Front and Outside Back
Cover Pages of Prospectus.............................Available Information; Information Incorporated
by Reference; Outside Back Cover Page
3. Summary Information, Risk Factors,
Ratio of Earnings to Fixed Charges ...................The Company; Risk Factors
4. Use of Proceeds........................................Use of Proceeds
5. Determination of Offering Price........................Not Applicable
6. Dilution...................................... ........Not Applicable
7. Selling Security holders ..............................Selling Securityholders
8. Plan of Distribution...................................Outside Front Cover Page; Plan of Distribution
9. Description of Securities to be Registered..............Description of Warrants; Description of
Common Stock
10. Interests of Named Experts and Counsel............... Legal Matters; Experts
11. Material Changes...........................................The Company-Recent Developments
12. Incorporation of Certain Information by
Reference............................................Information Incorporated by Reference
13. Disclosure of Commission Position on
Indemnification for Securities
Act Liabilities.....................................Not Applicable
</TABLE>
<PAGE>
Subject to Completion, dated March 19, 1998 Information contained herein is
subject to completion or amendment. A Registration Statement relating to these
securities has been filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted prior to the time
the Registration Statement becomes effective. This Prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy, nor shall
there be any sale of these securities in any state in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any state.
PROSPECTUS
AMPEX CORPORATION
1,020,000 Warrants to Purchase Class A Common Stock
and
1,020,000 Shares of Class A Common Stock
--------------------------------
This Prospectus relates to the public offering and sale by certain holders
(the "Selling Securityholders") of: (i) up to 1,020,000 warrants (the
"Warrants") of Ampex Corporation, a Delaware corporation ("Ampex" or the
"Company") to purchase shares of the Class A Common Stock, $ 0.01 par value per
share (the "Common Stock") of the Company, at a price of $2.25 per share,
subject to adjustment, and (ii) up to 1,020,000 shares (the "Warrant Shares") of
the Company's Common Stock issuable upon exercise of the Warrants. The Warrants
and the Warrant Shares covered by this Prospectus are referred to collectively
as the "Securities." The Securities are being offered from time to time for the
accounts of the Selling Securityholders. The Securities may be offered directly
by the Selling Securityholders or through one or more underwriters,
brokers-dealers or agents, on any exchange or in the over-the-counter market, or
otherwise. To the extent required, the specific Securities to be sold, the
respective offering prices, the names of any underwriters, brokers-dealers or
agents, and any applicable fees, commissions or discounts will be set forth in
an accompanying Prospectus Supplement. The aggregate proceeds to the Selling
Securityholders from the sale of the Securities will be the purchase price of
the Securities sold less the aggregate fees, commissions or discounts, if any,
payable to underwriters, broker-dealers or agents. The Selling Securityholders
may also sell all or a portion of the Securities pursuant to Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act"), to the extent that
such sales may be made in compliance with such Rule. See "Plan of Distribution."
The Company will pay the expenses of the registration of the Securities
under the Securities Act estimated to be $55,000. The Selling Securityholders
and broker-dealers who execute orders on the Selling Securityholders' behalf may
be deemed "underwriters" as that term is used in Section 2(11) of the Securities
Act, and a portion of the proceeds of sales and commissions therefor may be
deemed underwriting compensation for purposes of the Securities Act. The Company
will not receive any cash proceeds from the sale of the Securities by Selling
Securityholders. See "Selling Securityholders."
There is currently no public market for the Warrants and there can be no
assurance that a market for such securities will develop. The Common Stock is
traded on the American Stock Exchange under the symbol "AXC." On March 17, 1998,
the closing price of the Common Stock on the American Stock Exchange was $2.75
per share. The Company does not intend to seek to list the Warrants on any
securities exchange. For a complete description of the terms of the Securities,
see "Description of Warrants" and "Description of Capital Stock."
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE SECURITIES.
-----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------------------
The date of the Prospectus is ________, 1998
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy and information statements and
other information filed with the Commission by the Company can be inspected and
copied at the public reference facilities maintained by the Commission, located
at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549;
and at the Commission's Regional Offices, located at 7 World Trade Center, Suite
1300, New York, New York 10048, Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511, and 5670 Wilshire Boulevard, 11th Floor, Los
Angeles, California 90036. Copies of all or any part of such materials also may
be obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Such material also
can be reviewed through the Commission's Electronic Data Gathering, Analysis and
Retrieval System, which is publicly available through the Commission's Web site
(http://www.sec.gov). In addition, such reports and other information may be
inspected at the offices of the American Stock Exchange, 86 Trinity Place, New
York, New York 10006-1881.
Pursuant to the Securities Act and the rules and regulations promulgated
thereunder, the Company has filed with the Commission a Registration Statement
on Form S-3 covering the securities being offered hereunder (the "Registration
Statement," which term includes this Prospectus and all amendments, supplements,
exhibits, annexes and schedules to the Registration Statement). This Prospectus
does not contain all the information set forth in the Registration Statement,
certain parts of which are omitted as permitted by the rules and regulations of
the Commission. Statements made in this Prospectus as to the contents of any
contract, agreement or other document are not necessarily complete. With respect
to each such contract, agreement or other document filed as an exhibit to the
Registration Statement, reference is hereby made to such exhibit for a more
complete description of the matter involved, and each such statement shall be
qualified in its entirety by such reference.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission (File No.
0-20292) pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The Company's Current Report on Form 8-K filed on February 2, 1998.
3. The Company's definitive proxy statement dated April 29, 1997
relating to its annual meeting of stockholders held on May 16, 1997.
4. The Company's Registration Statement on Form 8-A filed with the
Commission on January 16, 1996 relating to the description of the
capital stock.
In addition, all reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Prospectus and prior to the termination of the offering of the
securities shall be deemed to be incorporated by reference in this Prospectus
from the date of filing such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any and all of the documents that are
incorporated herein by reference (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into such documents).
Such requests should be directed to Ampex Corporation, 500 Broadway, Redwood
City, California 94063-3199, Attention: Investor Relations, (650) 367-4111.
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FORWARD-LOOKING STATEMENTS
Certain statements contained or incorporated by reference in this Prospectus
constitute "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking statements
involve known and unknown risks, uncertainties and other important factors that
could cause the actual results, performance or achievements of the Company, or
industry results, to differ materially from any future results, performance or
achievements expressed or implied by such forward-looking statements. Such
risks, uncertainties and other important factors include, among others:
potential inaccuracy of future sales and expense forecasts; effects of increased
inventories; potential inability of the Company to execute its marketing,
acquisition, investment, licensing and other strategies; potential inability of
the Company to integrate acquired businesses; effects of existing and emerging
competition and industry conditions; decline in sales to the government;
declining sales of professional video products; rapid technological changes and
risks of new product and business development efforts; the development of
application software for its 19- millimeter products; international operating
difficulties; redemption of the Company's outstanding Noncumulative Preferred
Stock; possible future issuances of debt or equity securities; and the Company's
liquidity and anticipated interest expenses. These forward-looking statements
speak only as of the date of this Prospectus. Statements herein with respect to
the Company's future strategies, policies or practices are subject to change at
any time without prior notice to securityholders of the Company, and the Company
disclaims any obligation or undertaking to disseminate updates or revisions of
any forward-looking statements contained or incorporated herein to reflect any
change in the Company's expectations with regard thereto or any change in
events, conditions or circumstances on which any such statement is based. The
information and the documents contained or incorporated by reference under "Risk
Factors" identify important factors that could cause future results to differ
from results currently anticipated.
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THE COMPANY
The names "Ampex," "DCT," "DST," "DIS" and "DCRsi" are trademarks of Ampex
Corporation.
General
Ampex is a leader in the design and manufacture of high performance scanning
recording devices and digital image processors. Its specialized recording
products are used for the acquisition of data at high speeds under difficult
conditions, such as those in aircraft, and for the storage of mass computer
data, especially images. The Company has significant experience in digital image
processing and has approximately 1,000 patents and patent applications in this
field and in recording technology, from which it derives significant licensing
income. The Company's principal licensees are the manufacturers of consumer
video products worldwide.
The Company's principal product groups are its mass data storage and
instrumentation products and its professional video and other products. The mass
data storage and instrumentation products group includes (i) 19- millimeter
scanning recorders and library systems (DST and DIS products) and related tape
and after-market equipment; and (ii) data acquisition and instrumentation
products (primarily DCRsi instrumentation recorders) and related tape and
after-market equipment. The Company's professional video and other products
groups includes primarily its DCT video recorders and image processing systems
and related tape products and television after-market equipment.
The Company was incorporated in Delaware in January 1992 as the successor to
a business originally organized in 1944. References to "Ampex" or the "Company"
include subsidiaries of Ampex Corporation, unless the context indicates
otherwise. The principal executive offices of the Company are located at 500
Broadway, Redwood City, California 94063, and its telephone number is (650)
367-2011. The Company's Class A Common Stock is traded on the American Stock
Exchange under the symbol "AXC".
Recent Developments
In January 1998, concurrently with the issuance of the Warrants, the Company
issued and sold to a group of institutional investors its 12% Senior Notes due
2003 (the "Notes") in the aggregate principal amount of $30,000,000. As a result
of the issuance of the Notes, the Company's total indebtedness has increased
substantially from prior levels. See "Risk Factors--Increased Leverage." The
Company expects to use the net proceeds of the Notes (approximately $28.5
million after deduction of estimated fees and expenses) primarily for working
capital purposes, expansion of its existing business lines, and possible
investments in, or acquisitions of, new businesses.
The Company has not entered into any negotiations, arrangements or
understandings with any acquisition candidates at the date of this Prospectus,
except that the Company has been in discussions regarding the acquisition of the
seismic data storage and related software and marketing business and assets of
one of its resellers in the oil and gas exploration industry. The acquisition of
such business and assets, if completed, would not be material to the Company.
There can be no assurance that the Company will successfully complete this or
any other acquisitions of businesses or that the Company will realize any
financial benefit therefrom. See "Risk Factors--Risks Associated With
Acquisition Strategy."
RISK FACTORS
Investment in the Securities offered hereby involves a significant degree of
risk. Prospective investors should carefully consider the following factors,
together with the other information included or incorporated by reference in
this Prospectus, in evaluating the Company and its business before making an
investment decision.
Increased Leverage
Following issuance of the Notes, the Company's leverage increased
significantly from its prior level, which was not material. As of December 31,
1997, on a pro forma basis after giving effect to the issuance of the Notes, the
Company had outstanding approximately $31.2 million of total indebtedness
(including the Notes). In addition, subject
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to the restrictions in the Indenture, the Company may incur additional
indebtedness from time to time to finance acquisitions or capital expenditures
or for other purposes. The degree to which the Company is leveraged could have
important consequences to investors in the Company, including the following: (i)
a substantial portion of the Company's consolidated cash flow from operations
must be dedicated to the payment of the principal of and interest on its
outstanding indebtedness and will not be available for other purposes, (ii) the
Company's ability to obtain additional financing in the future for working
capital needs, capital expenditures, acquisitions and general corporate purposes
may be materially limited or impaired or such financing may not be on terms
favorable to the Company, (iii) the Company may be more highly leveraged than
its competitors, which may place it at a competitive disadvantage, (iv) the
Company's leverage may make it more vulnerable to a downturn in its business or
the economy in general, and (v) the financial covenants and other restrictions
contained in the indenture pursuant to which the Notes were issued (the
"Indenture") and other agreements relating to the Company's indebtedness will
restrict its ability to borrow additional funds, to dispose of assets or to pay
dividends on or repurchase preferred or common stock.
The Company anticipates that its cash balances together with cash flow from
operations will be sufficient to fund anticipated operating expenses, capital
expenditures and its debt service requirements as they become due. There can be
no assurance, however, that the amounts available from such sources will be
sufficient for such purposes. No assurance can be given that additional sources
of funding will be available if required or, if available, will be on terms
satisfactory to the Company. If the Company is unable to service its
indebtedness it will be forced to adopt alternative strategies that may include
actions such as reducing or delaying capital expenditures, selling assets,
restructuring or refinancing its indebtedness, or seeking additional equity
capital. There can be no assurance that any of these strategies will be
successful should such strategies become necessary, and any such strategies
could have a material adverse effect on the Company and its securityholders.
Fluctuations In Operating Results
Ampex's sales and results of operations are generally subject to quarterly
and annual fluctuations. Factors affecting operating results include: customer
ordering patterns; availability and market acceptance of new products; timing of
significant orders and new product announcements; order cancellations; receipt
of royalty income; and numerous other factors. Ampex's revenues are typically
dependent upon receipt of a limited number of customer orders involving
relatively large dollar volumes in any given fiscal period, increasing the
potential volatility of its sales revenues from quarter to quarter. In addition,
sales to government customers (primarily sales of DCRsi instrumentation
products) are subject to fluctuations as a result of changes in government
spending programs, which can materially affect the Company's gross margin as
well as its sales. Accordingly, results may fluctuate significantly from quarter
to quarter and from year to year. Results of a given quarter or year may not
necessarily be indicative of results to be expected for future periods. In
addition, fluctuations in operating results may negatively affect the Company's
debt service coverage, or its ability to issue debt or equity securities should
it wish to do so, in any given fiscal period.
Risks Associated With Acquisition Strategy
In order to implement its business strategy, the Company will consider
expansion of its products and services through internal development, joint
ventures, strategic partnerships and acquisitions of, and/or investments in,
other business entities. The Company has not entered into discussions with any
specific acquisition candidates at the date of this Prospectus, except for the
potential acquisition of the integrator of software and services for the oil and
gas industry described above. There is no assurance that management will be able
to identify, acquire or manage future acquisition candidates profitably on
behalf of the Company, or as to the timing or amount of any return that the
Company might realize in any such investment. Acquisitions could necessitate
commitments of funds in fixed assets and working capital of acquired businesses
in excess of the purchase price, which could reduce the Company's future
liquidity. Possible future acquisitions by the Company could result in the
incurrence by the Company or its Subsidiaries of additional debt, contingent
liabilities and amortization expenses related to goodwill and other intangible
assets, as well as write-offs of unsuccessful acquisitions, any or all of which
could materially adversely affect the Company's financial condition, results of
operations, cash flow and ability to issue debt or equity securities.
Seasonality; Backlog
Sales of most of the Company's products have historically declined during
the first and third quarters of its fiscal year, due to seasonal procurement
practices of its customers. A substantial portion of the Company's backlog at a
given
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time is normally shipped within one or two quarters thereafter. Therefore, sales
in any quarter are heavily dependent on orders received in that quarter and the
immediately preceding quarter.
Fluctuating Royalty Income
Ampex's results of operations in certain prior fiscal periods reflect the
receipt of significant royalty income, including material non-recurring payments
resulting from negotiated settlements primarily related to sales of products by
manufacturers prior to the negotiation of licenses from the Company. Although
Ampex has a substantial number of outstanding and pending patents, and the
Company's patents have generated substantial royalties in the past, it is not
possible to predict the amount of royalty income that will be received in the
future. Royalty income has historically fluctuated widely due to a number of
factors that the Company cannot predict, such as the extent of use of the
Company's patented technology by third parties, the extent to which the Company
must pursue litigation in order to enforce its patents and the ultimate success
of its licensing and litigation activities. The costs of patent litigation can
be material, and the institution of patent enforcement litigation may also
increase the risk of counterclaims alleging infringement by the Company of
patents held by third parties or seeking to invalidate patents held by the
Company. Moreover, there is no assurance that the Company will continue to
develop patentable technology that will be able to generate significant patent
royalties in future years to replace patents as they expire. Ampex's royalty
income fluctuates significantly from quarter to quarter and from year to year,
and there can be no assurance as to the level of royalty income that will be
realized in future periods.
Risk of Declines in Government Sales
Ampex's sales to U.S. and foreign government agencies (directly and through
government contractors), principally of instrumentation recorders, accounted for
approximately 27.7% of net sales in fiscal 1997, and are material to its results
of operations. Sales to government customers are subject to fluctuation as a
result of changes in government spending programs. Sales of the Company's DCRsi
instrumentation recorders have been relatively flat in the last two years,
reflecting primarily current procurement patterns of the Federal government, and
may decline in the future. Furthermore, sales of the Company's instrumentation
products are generally more profitable than its data storage and video recording
products. Accordingly, any material decline in the level of government purchases
of the Company's products could have a material adverse effect on the Company.
The Company is unable to forecast the extent to which its sales and gross
profits may be adversely affected in future periods by continued pressure on
government agencies to reduce spending, particularly of amounts related to
defense programs.
Declining Sales of Professional Video Products
Sales of professional video products have declined in recent years following
the Company's substantial withdrawal from this market in 1993. As a result, and
as a result of the recent announcement of new television transmission standards,
sales of these products are no longer material to the Company. However, the
Company has continued to derive material revenues from its sales of after-market
television equipment, which are also expected to decline for related reasons.
Certain of these products were designed for existing broadcast transmission
standards, which will become obsolete upon the implementation of recently
announced digital transmission standards. Accordingly, the Company anticipates
that sales of these products will continue to decline until new products can be
introduced that are designed for the new standards. Such sales declines could
have a materially adverse effect on the Company. There can be no assurance as to
when broadcasters will re-equip for the new transmission standards or whether
the Company will be successful in any future efforts it may undertake to design
and sell new products based on such standards.
Rapid Technological Change and Risks of New Product Development
All the industries and markets from which the Company derives revenues,
directly or through its licensing program, are characterized by continual
technological change and the need to introduce new products, product upgrades
and patentable technology. This has required, and will continue to require, the
expenditure of substantial amounts by the Company in the research, development
and engineering of new products and advances to existing products. No assurance
can be given that the Company's existing products and technologies will not
become obsolete or that any new products or technologies will win commercial
acceptance. Obsolescence of existing product lines, or inability to develop and
introduce new products, could have a material adverse effect on sales and
results of operations in the future. The
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development and introduction of new technologies and products are subject to
inherent technical and market risks, and there can be no assurance that the
Company will be successful in this regard.
Competition
Ampex encounters significant competition in all its product markets.
Although its competitors may vary from product to product, many of the Company's
competitors are larger companies with greater resources, broader product lines
and other competitive advantages. In the mass data storage market, Ampex
competes with a number of well-established competitors such as IBM, Storage
Technology Corporation, Exabyte Corporation, Sony Corporation and Quantum
Corporation, as well as smaller companies. In addition, other manufacturers of
scanning video recorders may seek to enter the mass data storage market in
competition with the Company. For example, in 1996, IBM announced the general
availability of a new high performance tape storage product. Also, in 1995 Sony
Corporation introduced a tape drive intended for the mass data storage industry.
In addition, price declines in competitive storage systems, such as magnetic or
optical disk drives, can negatively impact the Company's sales of its DST
products. In the instrumentation market, the Company competes primarily with
companies that depend on government contracts for a major portion of their sales
in this market, including Sony Corporation, Loral Data Systems, Datatape
Incorporated and Metrum Incorporated. The number of competitors in this market
has decreased in recent years as the level of government spending in many areas
has declined. In the professional video recorder market, Sony and Panasonic are
the leading competitors of the Company. There is no assurance that the Company
will be able to compete successfully in these markets in the future.
Dependence On Certain Suppliers
Ampex purchases certain components from a single domestic or foreign
manufacturer. Significant delays in deliveries or defects in such components
could adversely affect Ampex's manufacturing operations, pending qualification
of an alternative supplier. In addition, the Company produces highly engineered
products in relatively small quantities. As a result, its ability to cause
suppliers to continue production of certain products on which the Company may
depend may be limited. The Company does not generally enter into long-term raw
materials or components supply contracts.
Risks Related to International Operations
Although the Company significantly curtailed its international operations in
connection with the restructuring of its operations in 1993, sales to foreign
customers (including U.S. export sales) continue to be significant to the
Company's results of operations. International operations are subject to a
number of special risks, including limitations on repatriation of earnings,
restrictive actions by local governments, and fluctuations in foreign currency
exchange rates and nationalization. Additionally, export sales are subject to
export regulation and restrictions imposed by U.S. government agencies.
Fluctuations in the value of foreign currencies can affect Ampex's results of
operations. The Company does not normally seek to mitigate its exposure to
exchange rate fluctuations by hedging its foreign currency positions.
Dependence on Key Personnel
The Company is highly dependent on its management. The Company's success
depends upon the availability and performance of its executive officers and
directors. The loss of the services of any of these key persons could have a
material adverse effect upon the Company. The Company does not maintain key man
life insurance on any of these individuals.
Dependence on Licensed Patent Applications and Proprietary Technology
The Company's success depends, in part, upon its ability to establish and
maintain the proprietary nature of its technology through the patent process.
There can be no assurance that one or more of the patents held directly by the
Company will not be successfully challenged, invalidated or circumvented or that
the Company will otherwise be able to rely on such patents for any reason. In
addition, there can be no assurance that competitors, many of whom have
substantial resources and have made substantial investments in competing
technologies, will not seek to apply for and obtain patents that prevent, limit
or interfere with the Company's ability to make, use and sell its products
either in the United States or in foreign markets. If any of the Company's
patents are successfully challenged, invalidated or circumvented or the
Company's right or ability to manufacture its products were to be proscribed or
limited, the
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Company's ability to continue to manufacture and market its products could be
adversely affected, which would likely have a material adverse effect upon the
Company's business, financial condition and results of operations.
Litigation may be necessary to enforce patents issued to the Company, to
protect trade secrets or know-how owned by the Company or to determine the
enforceability, scope and validity of the proprietary rights of others. Any
litigation or interference proceedings brought against, initiated by or
otherwise involving the Company may require the Company to incur substantial
legal and other fees and expenses and may require some of the Company's
employees to devote all or a substantial portion of their time to the
prosecution or defense of such litigation or proceedings. The Company is
currently involved in patent infringement litigation with a manufacturer of VHS
video recorders and television receivers, with respect to which it has incurred
significant expenses.
Environmental Issues
The Company's facilities are subject to numerous federal, state and local
laws and regulations designed to protect the environment from waste emissions
and hazardous substances. Owners and occupiers of sites containing hazardous
substances, as well as generators and transporters of hazardous substances, are
subject to broad liability under various federal and state environmental laws
and regulations, including liability for investigative and cleanup costs and
damages arising out of past disposal activities. The Company has been named from
time to time as a potentially responsible party by the United States
Environmental Protection Agency with respect to contaminated sites that have
been designated as "Superfund" sites, and is currently engaged in various
environmental investigation, remediation and/or monitoring activities at several
sites located off Company facilities. There can be no assurance the Company will
not ultimately incur liability in excess of amounts currently reserved for
pending environmental matters, or that additional liabilities with respect to
environmental matters will not be asserted. In addition, changes in
environmental regulations could impose the need for additional capital equipment
or other requirements. Such liabilities or regulations could have a material
adverse effect on the Company in the future.
Redemption of Preferred Stock
As of December 31, 1997, the Company became required to redeem the 69,970
outstanding shares of its 8% Noncumulative Preferred Stock, to the extent of
funds legally available therefor (generally, the excess of the value of assets
over liabilities), at a redemption price of $1,000 per share. However, at that
date the Company did not have any funds legally available to redeem the
Noncumulative Preferred Stock, and the Company cannot predict when, and to what
extent, it will generate legally available funds to permit it to redeem the
Noncumulative Preferred Stock. The Company will remain obligated to redeem such
shares from time to time in future fiscal periods to the extent funds become
legally available for redemption, and will generally be precluded from declaring
any cash dividends on, or repurchasing shares of, its Common Stock, until the
Noncumulative Preferred Stock has been redeemed in full. Redemption of the
Noncumulative Preferred Stock for cash in the future could have a negative
impact on the Company's liquidity. In certain instances the Company may, at its
option, redeem the Noncumulative Preferred Stock by issuing common stock at 90%
of fair market value, provided, however, that the fair market value of the
Common Stock is then at least $4.00 per share. Although the Company has no
current plans for redemption of the Noncumulative Preferred Stock until funds
become legally available, the Company is continuing to evaluate the possibility
of redeeming the Noncumulative Preferred Stock by issuing additional equity
securities, in light of market conditions, its liquidity and other factors. Any
such redemption could result in substantial dilution of stockholders' equity
interests in the Company and could have an adverse effect on the value of the
Warrants and Common Stock.
Non-payment of Dividends
The Company has not declared dividends on its Common Stock since its
incorporation in 1992 and has no present intention of paying dividends on its
Common Stock. The Company is also restricted by the terms of the Indenture for
the Notes and certain other agreements and of its outstanding Noncumulative
Preferred Stock as to the declaration of dividends. Accordingly, investors in
the Securities should not expect to receive any cash dividends from the Company
in the foreseeable future.
Anti-Takeover Consequences of Certain Governing Instruments
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The Company's Certificate of Incorporation provides for a classified Board
of Directors, with members of each class elected for a three-year term. The
Certificate of Incorporation provides for nullification of voting rights of
certain foreign stockholders in certain circumstances involving possible
violations of security regulations of the United States Department of Defense.
The instruments governing the Company's outstanding Noncumulative Preferred
Stock and the Indenture for the Notes each require mandatory offers by the
Company to redeem such securities in the event of a Change of Control (as
defined). The Certificate of Incorporation authorizes the Board of Directors of
the Company to issue additional shares of Preferred Stock without the vote of
stockholders.
Such provisions could have anti-takeover effects by making an acquisition of
the Company by a third party more difficult or expensive in certain
circumstances.
Volatility of Stock Price
The trading price of the Company's Common Stock has been and can be expected
to be subject to significant volatility, reflecting a variety of factors,
including quarterly fluctuations in operating results, announcements of new
product introductions by the Company or its competitors, reports and predictions
concerning the Company by analysts and other members of the media, and general
economic or market conditions. The stock market in general and technology
companies in particular have experienced a high degree of price volatility,
which has had a substantial effect on the market prices of many technology
companies for reasons that often are unrelated or disproportionate to operating
performance. In addition, the Company currently maintains effective registration
statements covering the issuance and sale by the Company of up to 1,150,000
shares of Common Stock and the offering of outstanding shares of Common Stock by
certain affiliates of the Company and related parties. The sale, or offer for
sale, of substantial numbers of such shares could adversely affect the market
price for the Warrants and the Common Stock.
Absence of a Public Market
The Warrants are new securities for which there is currently no public
market. The Company does not intend to list the Warrants on any national
securities exchange or to seek the admission thereof to trading in the National
Association of Securities Dealers Automated Quotation System. Accordingly, there
can be no assurance as to the development of any market or liquidity of any
market that may develop for the Warrants.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Securities by
the Selling Securityholders. The Company has agreed to bear the expenses of the
registration of the Warrants and the Warrant Shares pursuant to a Registration
Rights Agreement (as defined below) between the Company and the initial
purchaser of the Warrants.
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DESCRIPTION OF WARRANTS
General
The Company has issued an aggregate of 1,020,000 Warrants to purchase up to
1,020,000 Warrant Shares. The Warrants were issued under a Warrant Agreement,
dated as of January 28, 1998 (the "Warrant Agreement"), between the Company and
American Stock Transfer & Trust Company, as warrant agent (the "Warrant Agent").
The following summary of certain provisions of the Warrant Agreement and the
Warrants does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all the provisions of the Warrant Agreement and
the Warrants. A copy of the Warrant Agreement is available from the Company upon
request. The Warrant Agent also acts as a transfer agent for the Common Stock.
The current address of the Warrant Agent is 40 Wall Street, New York, New York
10005.
Each Warrant entitles the holder thereof to purchase one share of Common
Stock of the Company at a price (the "Warrant Exercise Price") of $2.25 per
share, subject to adjustment as specified below. The Warrants are exercisable at
any time after issuance and, unless exercised, will expire on March 15, 2003
(the "Warrant Expiration Date").
The Company has authorized and reserved for issuance such number of shares
of Common Stock as shall be initially issuable upon exercise of all outstanding
Warrants. Such shares, when issued in accordance with the Warrant Agreement,
will be fully paid and nonassessable. It is expected that such shares will be
listed for trading on the American Stock Exchange, subject to official notice of
issuance.
Except as expressly provided in the Warrant Agreement, holders of Warrants
are not entitled, by virtue of being such holders, to vote, consent, exercise
any preemptive right, to receive any notice as shareholders, or to exercise any
other rights whatsoever as shareholders of the Company.
Method of Exercise of Warrants
Warrants may be exercised by surrendering to the Warrant Agent, on or before
the Warrant Expiration Date, a Warrant certificate signed by the holder thereof
(with signature guaranteed), indicating such holder's election to exercise all
or a portion of the Warrants evidenced by such certificate, together with
payment of the Warrant Exercise Price and any specified taxes. Payment may be
made in cash or by certified or cashier's check or money order payable to the
order of the Warrant Agent, or by any combination of the foregoing. Upon
surrender of the Warrant certificate for exercise, the Warrant Agent will
deliver or cause to be delivered, or upon the written order of such holder,
certificates representing the number of shares of Common stock or other
securities or property (including cash in lieu of fractional shares) to which
such holder is entitled, together with Warrant certificates evidencing any
Warrants not excised.
Anti-Dilution Adjustments
The number of shares of Common Stock issuable and the Warrant Exercise Price
payable, upon exercise of the Warrants, is subject to adjustment in certain
events, including, without limitation, (i) the subdivision, combination or
reclassification of the Common Stock, (ii) the declaration of a dividend in
shares of Common Stock on the outstanding shares of Common Stock, (iii) the
fixing of a record date for the issuance of rights, warrants, options or
convertible securities to all holders of its Common Stock to subscribe for
shares of Common Stock, at less than the Current Market Price (as defined
herein), or (iv) the fixing of a record date for the making of a distribution to
all holders of its Common Stock, of capital stock other than Common Stock,
evidences of indebtedness or assets (excluding cash dividends other than
extraordinary dividends).
Upon the occurrence of any consolidation or merger involving the Company in
which it is not the surviving corporation (or pursuant to which Common Stock is
exchanged for stock or other securities of any other person or cash or any other
property), any sale of substantially all its assets by the Company, or capital
reorganization or reclassification of the Common Stock (other than
reorganizations or reclassifications resulting in adjustments pursuant to
provisions described above), Warrant holders will be entitled to receive the
amount of shares, securities or other property to which such holders would have
been entitled as shareholders had they exercised their Warrants immediately
prior to the consummation thereof.
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No adjustments in the number of shares or the Warrant Exercise Price of the
Warrants will be required until the cumulative amount of such adjustments
reaches a specified minimum.
No fractional shares will be issued upon exercise of Warrants, but the
Company will pay the cash value of any fractional shares otherwise issuable.
Registration Rights
The Company and the initial purchaser of the Warrants entered into a warrant
registration rights agreement, dated as of January 28, 1998 (the "Warrant
Registration Rights Agreement") on January 28, 1998 (the "Issue Date"). Under
the Warrant Registration Rights Agreement the Company agreed to file a shelf
registration statement under the Securities Act covering the offering and sale
of the Warrants and the Warrant Shares and to use its reasonable best efforts to
cause such shelf registration statement to be declared effective and to remain
effective until the earlier of (i) such time as all the Warrants have been
exercised and (ii) the second anniversary of the Issue Date. The Registration
Statement of which this Prospectus is a part has been filed by the Company
pursuant to the Warrant Registration Rights Agreement and declared effective by
the Commission on or about the date of this Prospectus.
Holders of the Warrants will be able to exercise the Warrants only if a
registration statement relating to the Warrant Shares is in effect or the
issuance of the Warrant Shares is exempt from registration under the Securities
Act. Although the registration statement of which this Prospectus is a part
became effective on or about the date of this Prospectus, there can be no
assurance that the Company will be able to keep a registration statement
continuously effective until all the Warrants have been exercised or have
expired. Accordingly, holders of the Warrants or the Warrant Shares could be
required to hold such securities, and bear the risk of loss of their
investments, for an indefinite period of time.
DESCRIPTION OF CAPITAL STOCK
The description of the Company's Capital Stock is contained in the Company's
Registration Statement on Form 8-A filed with the Commission on January 16,
1996, and is incorporated herein by reference.
SELLING SECURITYHOLDERS
The following table sets forth certain information with respect to the
Selling Securityholders as of the date of this Prospectus. Except as indicated
below, all of the Securities beneficially owned by each Selling Securityholder
are being registered for the account of such Selling Securityholder. Since the
Selling Securityholders may sell all or some of their Securities, no estimate
can be made of the aggregate number or amount of Securities which would be owned
by each Selling Securityholder upon completion of the offering to which this
Prospectus relates. The information set forth in the table was furnished to the
Company by the respective Selling Securityholders.
Number of
Selling Security Holder Warrants and
Warrant Shares
Prudential Series High Yield #2TIV 170,000
Paine Webber High Income 102,000
Paine Webber All American Term Trust 68,000
Paine Webber Premier High Income 17,000
Paine Webber Strategic Income 17,000
BEA-SEI Institutional Managed Trust #2850 34,000
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BEA-Strategic #2526 17,000
BEA-Income Fund #3208 25,500
BEA-Strategic Income Fund #3208 8,500
GM-DDJ Capital Management - HY GMCF 1246412 561,000
PLAN OF DISTRIBUTION
The sale or distribution of the Securities may be effected directly to
purchasers by the Selling Securityholders as principals or through one or more
underwriters, brokers, dealers or agents from time to time in one or more
transactions (which may involve crosses or block transactions) (i) on any
exchange or in the over-the-counter market, (ii) in transactions otherwise than
on an exchange or in the over-the-counter market, or (iii) or through the
settlement of short sales of the Securities. If the Selling Securityholders
effect such transactions by selling Securities to or through underwriters,
brokers, dealers or agents, such underwriters, brokers, dealers or agents may
receive compensation in the form of discounts, concessions or commissions from
the Selling Securityholders or commissions from purchasers of Securities for
whom they may act as agent (which discounts, concessions or commissions as to
particular underwriters, brokers, dealers or agents may be in excess of those
customary in the types of transactions involved).
The Selling Securityholders and any brokers, dealers or agents that
participate in the distribution of Securities may be deemed to be "underwriters"
as defined in the Securities Act and any profit on the sale of Securities by
them and any discounts, commissions or concessions received by any such brokers,
dealers or agents might be deemed to be underwriting discounts and commissions
under the Securities Act.
The Securities may be sold from time to time in one or more transactions at
a fixed offering price, which may be changed, or at varying prices determined at
the time of sale or at a negotiated price. It is not possible at the present
time to determine the price to the public in any sale of Securities by Selling
Securityholders. There has been no public market for the Warrants and each
Selling Securityholder reserves the sole right to accept or reject, in whole or
in part, any proposed purchase of Securities. Accordingly, the public offering
price and the amount of any applicable underwriting discounts and commissions
will be determined at the time of such sale by Selling Securityholders.
Under the Exchange Act and Rule 10b-6 thereunder, the Selling
Securityholders and any person engaged in a distribution of the Securities
offered by this Prospectus may not simultaneously engage in any market making
activities with respect to the Common Stock during the applicable two to nine
business day "cooling off" period prior to the commencement of such
distribution. In addition, without limiting the foregoing, such persons will be
subject to other provisions of the Exchange Act and the rules thereunder,
including, without limitation, Rule 10b-5, which provisions may limit the timing
of purchases and sales of the Common Stock by the Selling Stockholders and may
prevent dealers from making a market in the Common Stock during certain periods.
Under the securities laws of certain states, the Common Stock may be sold in
such states only through registered or licensed brokers or dealers. In addition,
in certain states the Common Stock may not be sold unless the Common Stock has
been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with.
The aggregate proceeds to the Selling Securityholders from the sale of the
Securities will be the purchase price of the Securities sold less all applicable
commissions and underwriter's discounts, if any, and other expenses of issuance
and distribution not borne by the Company. The Company will pay the expenses
incident to the registration, offering and sale of the Securities to the public
by Selling Securityholders other than fees, discounts and commissions of
underwriters, dealers or agents, if any, transfer taxes and certain counsel
fees.
If and to the extent required, the specific Securities to be sold, the names
of the Selling Securityholders, the respective purchase prices and public
offering prices, the names of any such agent, dealer or underwriter, and any
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applicable fees, commissions or discounts with respect to a particular offer
will be set forth in an accompanying Prospectus Supplement or, if appropriate, a
post-effective amendment to the Registration Statement of which this Prospectus
is a part.
The Company has agreed to indemnify the Selling Securityholders and any
underwriters against certain liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
Certain legal matters in connection with the Securities will be passed upon
for the Company by Battle Fowler LLP (a limited liability partnership which
includes professional corporations), New York, New York, who may rely, as to
questions of California law and certain other matters, upon an opinion of
General Counsel to the Company. Battle Fowler LLP regularly provides legal
services to the Company and its affiliates. David D. Griffin, who is of counsel
to Battle Fowler LLP, owns shares of Common Stock of the Company.
EXPERTS
The consolidated balance sheets as of December 31, 1997 and 1996 and the
consolidated statements of operations, stockholders' deficit and cash flows for
each of the three years in the period ended December 31, 1997, and related
financial statement schedule, included in the Company's Annual Report on Form
10-K for the year ended December 31, 1997, have been audited by Coopers &
Lybrand L.L.P., independent accountants, as set forth in their report included
in such Annual Report, and are incorporated herein by reference in reliance upon
such report, given upon the authority of such firm as experts in accounting and
auditing.
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<TABLE>
<S> <C>
No dealer, salesman or other person has been authorized to give any information
or to make any representation not contained or incorporated by reference in this
Prospectus. If given or made, such information or representation must not be
relied upon as having been authorized by the Company. This Prospectus does AMPEX CORPORATION
not constitute an offer to sell, or a solicitation of an offer to buy,
any Securities in any jurisdiction. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any
circumstances, create an implication that there has been no
change in the affairs of the Company since the date hereof. ________________
--------------
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION...........................................-2-
INFORMATION INCORPORATED BY REFERENCE...........................-2-
FORWARD-LOOKING STATEMENTS......................................-3-
PROSPECTUS
THE COMPANY.....................................................-4-
RISK FACTORS....................................................-4- __________, 1998
ABSENCE OF A PUBLIC MARKET......................................-9-
-----------------
USE OF PROCEEDS.................................................-9-
DESCRIPTION OF WARRANTS........................................-10-
DESCRIPTION OF CAPITAL STOCK...................................-11-
SELLING SECURITYHOLDERS........................................-11-
PLAN OF DISTRIBUTION...........................................-12-
LEGAL MATTERS..................................................-13-
EXPERTS ......................................................-13-
</TABLE>
<PAGE>
PART II
Item 14. Other Expenses of Issuance and Distribution
The expenses payable by Registrant in connection with the issuance and
distribution of the securities being registered (other than underwriting
discounts or commissions) are estimated as follows:
SEC Registration Fee............................................ $865
Accounting Fees and Expenses....................................5,000
Legal Fees and Expenses........................................25,000
American Stock Exchange Listing................................17,500
Miscellaneous...................................................1,611
-----
TOTAL $55,000
Item 15. Indemnification of Directors and Officers
The Registrant is a Delaware corporation. Reference is made to Section 145
of the Delaware General Corporation Law (the "DGCL"), which provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person is or was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such officer,
director, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests and, for
criminal proceedings, had no reasonable cause to believe that his conduct was
unlawful. A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses that
such officer or director actually and reasonably incurred.
Reference is also made to Section 102(b)(7) of the DGCL, which enables a
corporation in its certificate of incorporation to eliminate or limit the
personal liability of a director for monetary damages for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Article VIII, Section 3 of the Registrant's By-laws provides as follows:
SECTION 1. Right to Indemnification. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such person. The Corporation
shall be required to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
SECTION 2. Prepayment of Expenses. The Corporation shall pay the expenses
(including attorneys' fees) incurred in defending any proceeding in advance of
its final disposition, provided, however, that the payment of expenses incurred
by a director or officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the director or officer to
repay all amounts advanced if it should
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be ultimately determined that the director or officer is not entitled to be
indemnified under this Article or otherwise.
SECTION 3. Claims. If a claim for indemnification or payment of expenses
under this Article is not paid in full within sixty days after a written claim
therefor has been received by the Corporation, the claimant may file suit to
recover the unpaid amount of such claim, and if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification or payment of expenses under
applicable law.
SECTION 4. Non-Exclusivity of Rights. The rights conferred on any person by
this Article VIII shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the Restated
Certificate of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested directors or otherwise.
SECTION 5. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
SECTION 6. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article VIII shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE TEN of the Registrant's Certificate of Incorporation provides as
follows:
"A director of this Corporation shall not be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL, so the same exists or may hereafter
be amended.
This ARTICLE TEN may not be amended or modified to increase the
liability of the Corporation's directors, or repealed, except upon the
affirmative vote of the holders of 80% or more in voting power of the
outstanding Common Shares. No such amendment, modification, or repeal shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment, modification, or repeal."
The Registrant has entered into agreements to indemnify its directors in
consideration of their agreement to serve as directors of the Registrant and
certain other corporations requested by the Registrant. These agreements
provide, among other things, that the Registrant will indemnify and advance
certain expenses, including attorneys' fees, to such directors to the fullest
extent permitted by applicable law, as such law may be amended from time to
time, and by the Registrant's Certificate of Incorporation, By-Laws and
resolutions.
The Company presently maintains a "Directors & Officers Liability and
Corporate Reimbursement" insurance policy with a $2,000,000 aggregate limit of
liability in each policy year. The policy provides coverage to past, present and
future directors and officers of the Company and its subsidiaries for losses
resulting from claims for which any such officer or director was not indemnified
by the Company. The policy also provides for reimbursement to the Company and
its subsidiaries for amounts paid to indemnify officers and directors for loss
resulting from claims against such officers and directors. The policy is subject
to certain exclusions, such as claims against officers and directors for
dishonest, fraudulent or criminal acts or omissions, willful violations of law,
libel and slander, bodily injury and property damage, pollution, etc.
Item 16. Exhibits
The Exhibits to this registration statement on Form S-3 are listed in the
Exhibit Index which appears elsewhere herein and is incorporated herein by
reference.
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Item 17. Undertakings
(a) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described above in Item 15, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by Registrant
of expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(b) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range,
if applicable, may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) of the Securities Act if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (c)(1)(i) and (c)(1)(ii) above do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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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 the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York on March 17, 1998.
AMPEX CORPORATION
By: /c/Craig L. McKibben
----------------------------------
Craig L. McKibben
Vice President, Chief Financial Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
Each person signing below also hereby appoints Edward J. Bramson and Craig
L. McKibben, and each of them singly, his lawful attorney-in-fact, with full
power to execute and file any amendments to the Registration Statement, and
generally to do all such things, as such attorney-in-fact may deem appropriate
to comply with the provisions of the Securities Act of 1933 and all requirements
of the Securities and Exchange Commission.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/Edward J. Bramson Chairman, President, Chief Executive March 17, 1998
- ----------------------------------------
Edward J. Bramson Officer and Director
(Principal Executive Officer)
/s/Craig L. McKibben Vice President, Director, Chief March 17, 1998
- ----------------------------------------
Craig L. McKibben Financial Officer and Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
Douglas T. McClure, Jr. Director March 17, 1998
- ----------------------------------------
Douglas T. McClure, Jr.
/s/Peter Slusser Director March 17, 1998
- ----------------------------------------
Peter Slusser
/s/William A. Stoltzfus, Jr. Director March 17, 1998
- ----------------------------------------
William A. Stoltzfus, Jr.
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibits
4.1 Warrant Agreement, dated as of January 28, 1998, between the Registrant
and American Stock Transfer & Trust Company, as warrant agent, including
form of Warrant Certificate (filed as Exhibit 4.2 to the Registrant's Form
8-K filed on February 2, 1998 (the "February 1998 8-K") and incorporated
herein by reference)
4.2 Purchase Agreement, dated January 26, 1998, between the Registrant and
First Albany Corporation, relating to the Registrant's 12% Senior Notes
due 2003 (filed as Exhibit 1.1 to the February 1998 8-K and incorporated
herein by reference)
4.3 Warrants and Warrants Share Registration Rights Agreement, dated as of
January 28, 1998, between the Registrant and First Albany Corporation
(filed as Exhibit 4.4 to the February 1998 8-K and incorporated herein by
reference)
5.1* Opinion of Battle Fowler LLP as to legality of securities
23.1* Consent of Coopers & Lybrand L.L.P., San Francisco, California
23.2 Consent of Battle Fowler LLP (included in Exhibit 5.1 hereto)
24.1 Power of Attorney (included in the signature pages of this Registration
Statement)
*filed herewith
II-6
<PAGE>
EXHIBIT 5.1
BATTLE FOWLER LLP
A LIMITED LIABILITY PARTNERSHIP
75 East 55th Street
New York, New York 10022
(212) 856-7000
(212) 856-7000
(212) 339-9150
March 19,1998
Ampex Corporation
500 Broadway
Redwood City, California 94063
Re: Registration of Stock Purchase Warrants
and Underlying Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel for Ampex Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
shelf registration statement on Form S-3 (the "Registration Statement"),
pursuant to which the Company proposes to register for sale by the holders
thereof up to 1,020,000 warrants (the "Warrants") to purchase an equal number of
shares of the Company's Class A Common Stock at $0.01 per share(the "Common
Stock"). Capitalized terms used and not defined herein shall have the meanings
given to them in the Registration Statement. You have requested that we furnish
our opinion as to the matters hereinafter set forth.
For purposes of this letter, we have examined originals or
copies of the following:
1. Registration Statement, as filed with the Securities
and Exchange Commission (the "Commission") on March
19, 1998;
2. The Amended and Restated Certificate of Incorporation
of the Company, as amended to date, incorporated by
reference as an exhibit to the Registration Statement
(the "Certificate of Incorporation");
<PAGE>
2
3. By-Laws of the Company, as amended to date,
incorporated by reference as an exhibit to the
Registration Statement (the "By-Laws");
4. The Warrant Agreement, between the Company and
American Stock Transfer & Trust Company of New York
(the "Warrant Agreement") as Warrant Agent (the
"Warrant Agent"), dated January 28, 1998, and the
form of Warrant Certificate attached thereto;
5. The Warrant and Warrant Share Registration Rights
Agreement for the Warrants and Common Stock, dated
January 18, 1998;
6. A Form of Class A Stock Certificate, filed with or
incorporated by reference as an exhibit to the
Registration Statement;
7. Records of corporate proceedings of the Company as
provided to us by an officer of the Company;
8. Such other documents as we have deemed necessary as a
basis for rendering the opinion herein expressed.
In rendering the opinions herein expressed, we have assumed
the genuineness of all signatures, the authenticity of all documents,
instruments and certificates submitted to us as originals, the conformity with
the original documents, instruments and certificates of all documents,
instruments and certificates submitted to us as copies and the legal capacity to
sign of all individuals executing such documents, instruments and certificates
(the "Documents"). In addition, we have assumed, other than with respect to
those signing on behalf of the Company, that all signatories of any Documents
have been duly authorized, pursuant to all applicable laws, regulations,
corporate charters and governing documents, to execute said Documents. As to
facts material to the opinions in this letter, we have relied, without any
investigation or independent verification, except as otherwise noted, upon
representations of the Company, including, without limitation, the
representations and statements made in an officers' fact certificate furnished
to us in connection with the preparation of this opinion, and upon
representations made in any of the other Documents referred to above.
We are not admitted to practice in any jurisdiction but the
State of New York, and we do not express any opinion as to the laws of any
states or jurisdictions other than the State of New York and matters of Federal
law and the Delaware General Corporate Law. No opinion is expressed as to the
effect that the law of any other jurisdiction may have upon the subject matter
of the opinions expressed herein under conflicts of law principles or otherwise.
<PAGE>
3
Statements in this opinion as to the validity, binding effect
and enforceability are subject to (i) limitations as to enforceability imposed
by bankruptcy, reorganization, moratorium, insolvency and other laws of general
application relating to or affecting the enforceability of creditors' rights,
including, without limitation, limitations as to enforceability that may be
imposed under Section 548 of the United States Bankruptcy Code (the "Bankruptcy
Code"), Article 10 of the New York Debtor Creditor Law or other provisions of
law relating to fraudulent transfers and obligations, (ii) equitable principles
limiting the availability of equitable remedies, and (iii) as to rights to
indemnity, limitations that may exist under Federal and state law or the public
policy underlying such laws. Such opinions are further subject to the following
additional limitations, qualifications and exceptions: (i) the limitation that
no opinion is expressed as to the enforceability of choice of law provisions;
and (ii) the unenforceability of any provision requiring any party to waive its
rights to a jury trial or requiring the payment of attorneys' fees, except to
the extent that a court determines such fees to be reasonable, or of liquidated
damages, except to the extent that a court determines such damages not to be a
penalty.
On the basis of and in reliance upon the foregoing, and
subject to the foregoing limitations, qualifications and exceptions, we are of
the opinion that:
1. The shares of Common Stock to be issued upon the exercise
of the Warrants have been duly authorized and, when issued, delivered
and paid for in accordance with the terms of the Certificate of
Incorporation, the Warrant Agreement, and the Warrants, as applicable,
and assuming that such shares continue to be duly authorized and
reserved for issuance, will be validly issued, fully paid and
non-assessable.
2. The Warrants have been duly authorized, executed and
delivered by the Company and are valid and binding obligations of the
Company in accordance with their terms.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to this firm under the
caption "Legal Matters" in the Prospectus forming a part of the Registration
Statement. In giving this consent, we do not admit thereby that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Commission.
Very truly yours,
<PAGE>
EXHIBIT 23.1
COOPERS & LYBRAND L.L.P
333 Market Street
San Francisco, California 94105-2119
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Ampex Corporation on Form S-3 (File No. _______) of our reports, dated February
20, 1998, on our audits of the consolidated financial statements and financial
statement schedule of Ampex Corporation, which reports appears in the Annual
Report on Form 10-K filed by Ampex Corporation for its fiscal year ended
December 31, 1997. We also consent to the reference to our firm under the
caption "Experts".
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
San Francisco, California
March 19, 1998
